FILED

TATES DISTRICT COURT DEC 2 2 mm
UNITED S C|erk, U.S. District & Bankruptcy

F()R THE D!STRICT oF C()LUMBIA Courts for the District of columbia
ROBERT HEARD,

Plaintiff,

v.  Civil Action No.  
U.S. CONGRESS, .

Defendant.

MEMORANDUM OPINION

This matter comes before the Court on consideration of plaintiff’ s complaint and
application to proceed in forma pauperis and pro se complaint. The Court will deny the
applicati0n, and dismiss the complaint.

Plaintiff states that he is subject to the "three strikes" provision of the Prison Litigation
Reform Actl("PLRA"), see 28 U.S.C. § l9l5(g). Unless he establishes that he "is under
imminent danger of serious physical injury," he may not proceed in forma pauperis because,
while incarcerated, he has filed at least three prior cases that were dismissed as fn`volous,
malicious, or for failure to state a claim. Id.; see Ibrahim v. Distrz`ct of Columbia, 463 F.3d 3, 6
(D.C. Cir. 2006); Ibrahim v. Disirict ofColumbia, 208 F.3d 1032, 1033 (D.C. 2000). Plaintiff
contends that § l9l5(g) violates his First Amendment right to access the courts and his Fifth
Amendment rights to due process and equal protection of the laws.

lt appears that plaintiff has accumulated at least "three strikes" for purposes of the

PLRA.l See Heard v. Owens, No. 5:09-cv-357, 2010 WL 554437, at *1 n.l (M.D. Ga. Feb. 9,
2010) (acknowledging "that plaintiff has had at least three previous complaints or appeals
dismissed as frivolous pursuant to 28 U.S.C. § 1915"); see also Heard v. Moye, 1:02-CV-720
O\I.D. Ga. Apr. 15, 2002) (dismissing action under 28 U.S.C. § 1915A); Heard v. Bush,
1:02-CV-354 (N.D. Ga. Feb. 25, 2002) (same); Heard v. Hall, 6:00 CV-105 (S.D. Ga. Mar. 15,
2001) (dismissing civil action under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915(A)). Nothing in
the complaint shows that plaintiff is under imminent danger of serious physical injury or that he
otherwise is entitled to proceed without payment of the filing fee.

"Prisoners who are not allowed to proceed [in forma pauperis] may pursue their
substantive claims just as anyone else by paying the filing fee." Adepegba v. Hammans, 103 F.3d
383, 387 (5th Cir. 1996). The District of Columbia Circuit concludes that 28 U.S.C. § l9l5(g)
"neither divests a prisoner of his right to bring a claim nor changes the law in a way that

adversely affects his prospects for success on the merits of the claim." Ibrahim v. District of

l ln addition, plaintiff is subject to an injunction order recently issued by the United

States District Court for the Southem District of Georgia:

[I]f Heard files another civil case, he should either pay the Court’s
$350 filing fee or make some believable showing that the
constitutional violation alleged has, at the time he files his complaint,
placed him in imminent danger of physical harrn. Otherwise, he
would be subject to contempt for violating this Court’s injunction,
prohibiting him from filing IFP petitions in any federal civil case that
does not rest on true, objectively verifiable, § l9l5(g) ‘imminent
harm’ allegations. He remains free to make filings in any federal case
where he pays the appropriate filing fee, or in any criminal or state
court case.

Heard v. Edenfeld, No. CV4l0-207, 2010 WL 3893959, at *2 (S.D. Ga. Sept. 20, 2010)
(footnote omitted) (Magistrate Report and Recommendation), aa’optea', 2010 WL 3893963, at *1
(S.D. Ga. Sept. 30, 2010).

Columbia, 208 F.3d at 1036.

Based on the rulings of the Northem and Southern Districts of Georgia and plaintiff" s
failure to show that he is under imminent danger of serious physical injury, the Court will deny
plaintiff s application to proceed in forma pauperis. This civil action will be dismissed without
prejudice to refiling upon payment in full of the $350 filing fee. An Order consistent with this

Memorandum Opinion will be issued separately on this same date.

uranium

United States District Judge

DATE; /~Z/[O/[o

