                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
ABRAHAM MACIAS-OCHOA,                     )
                                          )
                        Plaintiff,        )
                                          )
            v.                            )                      Civil Action No. 17-0908 (TSC)
                                          )
U.S. DEPARTMENT OF JUSTICE, et al.,       )
                                          )
                        Defendants.       )
_________________________________________ )


                                   MEMORANDUM OPINION

        On October 4, 2016, Plaintiff filed his complaint in the United States District Court for

the Central District of California. The case was transferred to this district on May 11, 2017.

This matter has come before the court on Defendants’ Motion to Reconsider and Vacate the

Grant of In Forma Pauperis Status to Plaintiff. For the reasons discussed below, Defendant’s

motion is GRANTED.

        Generally, a plaintiff must pay a filing fee in full. See 28 U.S.C. § 1914(a). The Court

may grant a plaintiff in forma pauperis status by “authoriz[ing] the commencement . . . of [the]

suit . . . without prepayment of fees” if plaintiff shows he is unable to pay them. Id. §1915(a)(1).

Pursuant to the Prison Litigation Reform Act (“PLRA”), in forma pauperis status does not

relieve a prisoner plaintiff of his obligation to pay the filing fee in full. Asemani v. U.S.

Citizenship & Immigration Servs., 797 F.3d 1069, 1072 (D.C. Cir. 2015). Rather than “pay the

full filing fee at the time he brings suit . . . he can pay the filing fee in installments over time.”




                                                    1
Id. (citations omitted). However, certain prisoners cannot qualify for in forma pauperis status

under the PLRA’s “three strikes” rule:

          In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
          or proceeding under this section if the prisoner has, on 3 or more prior occasions,
          while incarcerated or detained in any facility, brought an action or appeal in a court
          of the United States that was dismissed on the grounds that it is frivolous, malicious,
          or fails to state a claim upon which relief may be granted, unless the prisoner is
          under imminent danger of serious physical injury.
Id. (quoting 28 U.S.C. § 1915(g)); see Fourstar v. Garden City Grp., Inc., No. 15-5049, 2017

U.S. App. LEXIS 23950, at *1 (D.C. Cir. Nov. 28, 2017) (“[A] dismissal of a prisoner’s lawsuit

for failure to state a claim, or as frivolous or malicious, is commonly referred to as a strike.”).

          Defendants argue that Plaintiff has accumulated three strikes, based on the dismissal of

three civil actions filed in the United States District Court for the Northern District of Texas. See

Macias-Ochoa v. Mendez, No. 5:16-CV-00108 (N.D. Tex. June 24, 2016) (dismissing with

prejudice as frivolous); Macias-Ochoa v. Medford, No. 5:13-CV-00213 (N.D. Tex. Aug. 4,

2014) (dismissing with prejudice for failure to state a claim); Macias v. Dixon, No. 5:13-CV-

00160 (N.D. Tex. May 14, 2014) (dismissing with prejudice as frivolous and for failure to state a

claim).

          Plaintiff acknowledges the three cases in the Northern District of Texas. However, he

attributes their disposition to “the district judge who in part took sides with the defendants and

dismissed [the] complaints even though [plaintiff] was forced to pay . . . the filing fees in order

for the court to screen the complaint.” (Pl.’s Resp. in Opp’n to Def.’s Mot. to Recons. and

Vacate the Grant of In Forma Pauperis Status to Pl. and Supporting Mem. of P. (“Pl.’s Opp’n”)

at 1.) He considers Defendants’ motion an effort to distract the court’s attention from

Defendants’ failure to file a timely response to his Complaint. (See id. at 2.) Plaintiff then

discusses the court’s ‘“gate keeping’ role” under the PLRA to screen a prisoner’s complaint “for


                                                     2
the purpose of determining whether there are certain grounds for dismissal.” (Id.) He states that

“[t]he instant complaint was ‘properly’ screened by the U.S. District Judge in California in

[accordance] with the PLRA,” (id.,) and argues that Defendants now should not be allowed to

“erroneously contend the California Judge was mistaken in granting [plaintiff in forma pauperis

status],” (id. at 5.)

        Consideration of a plaintiff’s in forma pauperis status and the screening of his complaint

are separate functions. Here, Defendants are not asking the court to screen Plaintiff’s Complaint

a second time. Their motion pertains only to Plaintiff’s eligibility to proceed in forma pauperis

under 28 U.S.C. § 1915(g). Based on the court’s independent evaluation of the prior dismissals

cited by Defendants, see Fourstar, 2017 U.S. App. LEXIS 23950, at *11-*12, the court

concludes that each dismissal is “based on a court’s determination that the underlying action . . .

is ‘frivolous . . . or fails to state a claim upon which relief may be granted.’” Freeman v. Lee, 30

F. Supp. 2d 52, 54 (D.D.C. 1998) (quoting 28 U.S.C. § 1915(g)). The court therefore concludes

that Plaintiff has accumulated three strikes.

        Under these circumstances, Plaintiff may proceed in forma pauperis only if he “is under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The court “assess[es] . . .

danger at the time [Plaintiff] filed his complaint and thus look[s] only to the documents attesting

to the facts at that time, namely his complaint and the accompanying motion for [in forma

pauperis] status.” Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (2009); see Pinson v.

Samuels, 761 F.3d 1, 4 (2014). Plaintiff’s claims arise from the conditions of his confinement at

a correctional facility in Texas where he was held from August 18, 2013 to November 11, 2013.

(Compl. at 1.) Even if the Court were to assume that Plaintiff adequately alleged danger of

serious injury, it cannot be said that the danger was imminent: by the time Plaintiff filed his



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Complaint in California, approximately three years had passed and Plaintiff had been transferred

to a federal penitentiary in California. The court concludes that Plaintiff does not qualify for the

imminent danger exception.

       Defendants’ Motion to Reconsider and Vacate the Grant of In Forma Pauperis Status to

Plaintiff, ECF No. 16, is granted. Rather than dismiss the Complaint at this juncture, the court

revokes plaintiff’s in forma pauperis status and will permit him to pay the fee in full within thirty

days. 1 See, e.g., Matthews v. FBI, 251 F. Supp. 3d 257, 264 (D.D.C. 2017).

       An Order is issued separately.




DATE: December 8, 2017                        /s/
                                              TANYA S. CHUTKAN
                                              United States District Judge




1
 Review of the docket reveals that plaintiff already has paid a partial filing fee of $19, leaving
an outstanding balance of $331.
                                                 4
