Perry v. Clarke

E.D. Virginia

Perry v. Clarke

DecidedMay 11, 2021

Docket3:21-cv-00231

StatusUnknown

This text of Perry v. Clarke (Perry v. Clarke) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Perry v. Clarke, (E.D. Va. 2021).

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Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CALVIN PERRY, Plaintiff, v. Civil Action No. 3:21CV231 HAROLD CLARKE, et al., Defendants. MEMORANDUM OPINION Plaintiff, a Virginia inmate, has filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the filing fee. Thus, he presumably wishes to proceed without prepayment of fees and wishes to seek leave to proceed in forma pauperis. The pertinent statute provides: In no event shall a prisoner bring a civil action [in forma pauperis] 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. 28 U.S.C. § 1915(g). Plaintiff has at least three other actions or appeals that have been dismissed as frivolous or for failure to state a claim. See Perry v. Virginia, No. 7:08-CV-00193, 2008 WL 533997, at *2 (W.D. Va. Feb. 27, 2008) (citations omitted) (dismissing action pursuant to § 1915(g) for having three strikes); Perry v. Mills, No. 3:07-CV—00445, 2007 WL 2821803, at *2 (W.D. Va. Sept. 27, 2007) (same); see also Perry v. Bassett, No. 7:05-CV-—519, 2005 WL 2217014, at *6 n.1 (W.D. Va. Sept. 13, 2005) (noting plaintiffs prior dismissals pursuant to § 1915(g)) (citations omitted); cf Perry v. Dobyns, No. 3:20CV206, 2020 WL 6273980, at *6 (E.D. Va. Oct. 26, 2020) (directing the clerk “to note the disposition of the action for purposes of 28 U.S.C. § 1915(g)”).

Plaintiff's current submission does not suggest that he is in imminent danger of serious physical harm.’ Accordingly, his request to proceed in forma pauperis will be DENIED. The action will be DISMISSED WITHOUT PREJUDICE. Plaintiff remains free to submit his complaint with the full $402 filing fee. The Court will process such a complaint as a new civil action. An appropriate Order shall accompany this Memorandum Opinion.

Is/ John A. Gibney, Jr. Date: | | May 2021 United States District Jud Richmond, Virginia

' As Perry has been previously advised, “[a]llegations that the inmate has faced imminent danger in the past are insufficient to trigger the § 1915(g) exception.” Perry, 2007 WL 2821803, at *1 (citing Abdul—Akbar v. McKelvie, 239 F.3d 307, 307 (3d Cir. 2001); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CALVIN PERRY, Plaintiff, v. Civil Action No. 3:21CV231 HAROLD CLARKE, et al., Defendants. MEMORANDUM OPINION Plaintiff, a Virginia inmate, has filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the filing fee. Thus, he presumably wishes to proceed without prepayment of fees and wishes to seek leave to proceed in forma pauperis. The pertinent statute provides: In no event shall a prisoner bring a civil action [in forma pauperis] 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. 28 U.S.C. § 1915(g). Plaintiff has at least three other actions or appeals that have been dismissed as frivolous or for failure to state a claim. See Perry v. Virginia, No. 7:08-CV-00193, 2008 WL 533997, at *2 (W.D. Va. Feb. 27, 2008) (citations omitted) (dismissing action pursuant to § 1915(g) for having three strikes); Perry v. Mills, No. 3:07-CV—00445, 2007 WL 2821803, at *2 (W.D. Va. Sept. 27, 2007) (same); see also Perry v. Bassett, No. 7:05-CV-—519, 2005 WL 2217014, at *6 n.1 (W.D. Va. Sept. 13, 2005) (noting plaintiffs prior dismissals pursuant to § 1915(g)) (citations omitted); cf Perry v. Dobyns, No. 3:20CV206, 2020 WL 6273980, at *6 (E.D. Va. Oct. 26, 2020) (directing the clerk “to note the disposition of the action for purposes of 28 U.S.C. § 1915(g)”).

Plaintiff's current submission does not suggest that he is in imminent danger of serious physical harm.’ Accordingly, his request to proceed in forma pauperis will be DENIED. The action will be DISMISSED WITHOUT PREJUDICE. Plaintiff remains free to submit his complaint with the full $402 filing fee. The Court will process such a complaint as a new civil action. An appropriate Order shall accompany this Memorandum Opinion.

Is/ John A. Gibney, Jr. Date: | | May 2021 United States District Jud Richmond, Virginia

' As Perry has been previously advised, “[a]llegations that the inmate has faced imminent danger in the past are insufficient to trigger the § 1915(g) exception.” Perry, 2007 WL 2821803, at *1 (citing Abdul—Akbar v. McKelvie, 239 F.3d 307, 307 (3d Cir. 2001); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

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Perry v. Clarke, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-clarke-vaed-2021.

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