Benavides v. Executive Office for U.S. Attorneys ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDUARDO BENAVIDES, :
:
Plaintiff, :
:
v. : Civil Action No. 10-0061 (RWR)
:
EXECUTIVE OFFICE FOR UNITED STATES :
ATTORNEYS, :
:
Defendant. :
MEMORANDUM ORDER
On April 5, 2010, defendant filed a motion to vacate the Court’s January 13, 2010 Order
granting plaintiff’s application to proceed in forma pauperis on the ground that plaintiff has
accumulated more than “three strikes” under the Prison Litigation Reform Act (“PLRA”), see 28
U.S.C. § 1915(g). On April 22, 2010, the Court issued an Order advising plaintiff of his
obligation to respond to defendant’s motion. The Order expressly notified plaintiff that, if he
failed to file his opposition by May 21, 2010, the Court may treat defendant’s motion as
conceded. To date, plaintiff has neither filed an opposition nor requested more time to do so.
Defendant’s motion, therefore, is treated as conceded.
In addition, under the PLRA, a prisoner may not proceed in forma pauperis if while
incarcerated he has filed at least three prior cases that were dismissed as frivolous or malicious,
or for failure to state a claim. 28 U.S.C. § 1915(g); see Smith v. District of Columbia, 182 F.3d
25, 29 (D.C. Cir. 1999). “This [provision] is referred to as the ‘three strikes’ rule.” Ibrahim v.
District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (citing Ibrahim v. District of Columbia, 208
F.3d 1032, 1033 (D.C. Cir. 2000)). There is an exception to the three strikes rule for a prisoner
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who shows that he “is under imminent danger of serious physical injury” at the time he files suit.
28 U.S.C. § 1915(g).
As defendant demonstrates, see Def.’s Mot. to Vacate, Ex. 1-6, plaintiff has accumulated
more than three strikes. See Benavides v. Texas Dep’t of Crim. Justice, No. SA-99-CA-120-OG
(W.D. Tex. Jan. 27, 2000) (listing 15 previous federal suits filed in the Eastern and Western
Districts of Texas that had been dismissed, three of which had been dismissed as frivolous);
Benavides v. Sanez, No. 95-40306, 1998 WL 858817, at *1 (5th Cir. Nov. 19, 1998) (per curiam)
(dismissing appeal as frivolous); Benavides v. Pursley, 68 F.3d 471 (5th Cir. 1995) (per curiam)
(affirming district court’s denial of reconsideration of dismissal of the suit as frivolous under 28
U.S.C. § 1915(d)); Benavides v. Whitaker, 20 F.3d 467 (5th Cir. 1994) (per curiam) (same).
Plaintiff may proceed in forma pauperis only if he qualifies under the imminent danger
exception. To make this determination, the Court looks to the complaint, construes it liberally
and accepts its factual allegations as true. See Ibrahim, 463 F.3d at 6 (citation omitted).
The instant civil action is filed under the Freedom of Information Act (“FOIA”), see 5
U.S.C. § 552, for plaintiff to obtain records maintained by the Executive Office for United States
Attorneys. See Compl. ¶¶ 1-5. Plaintiff’s allegations pertaining to a request for federal agency
records do not amount to an assertion of imminent danger of serious physical injury. There are
no factual allegations from which the Court can infer either the existence of a threat or the
imminence or dangerousness of that threat. Plaintiff therefore does not qualify for in forma
pauperis status under the imminent danger exception. See Mitchell v. Fed. Bureau of Prisons,
587 F.3d 415, 421 (D.C. Cir. 2009) (“[U]nless [the courts] require prisoners to demonstrate the
actual existence of an imminent threat, otherwise disqualified filers could obtain IFP status
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simply by adding general allegations of endangerment.”).
Accordingly, it is hereby
ORDERED that defendant’s motion to vacate [Dkt. #12] is GRANTED; it is further
ORDERED that the January 13, 2010 Order granting plaintiff’s application to proceed in
forma pauperis [Dkt. #5] is VACATED and that plaintiff’s in forma pauperis status is
REVOKED; and it is further
ORDERED that all proceedings in this civil action are STAYED for 30 days after the
date of this Order. Within this 30-day period, plaintiff shall pay in full to the Clerk of Court the
$350 filing fee. If plaintiff fails to make such payment timely, the Court will dismiss this civil
action without prejudice.
Signed this 18th day of June, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge
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