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Kinard v. Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

May 28, 2014

JORDAN JOSEPH KINARD, Plaintiff,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS, ET AL., Defendants.

Jordan Joseph Kinard, Pro Se Plaintiff.

OPINION

JAMES P. JONES, District Judge.

The plaintiff, proceeding pro se, has filed a civil rights action under 42 U.S.C. § 1983, alleging that prison officials at Wallens Ridge State Prison do not provide access to legal reference materials that the plaintiff believes he needs in order to prepare adequate pleadings in his state habeas corpus proceedings.[1] The plaintiff has not prepaid the necessary fees to file a civil action in this court and has requested qualification to proceed in forma pauperis. Upon review of the record, I find that the plaintiff's lawsuit must be summarily dismissed without prejudice under 28 U.S.C. § 1915(g).

Under 28 U.S.C. §1915, all prisoner litigants suing government entities or officials must pay the civil action filing fee in full, either through prepayment or through consenting to installments withheld from the litigant's inmate trust account. § 1915(b). Section 1915(g) denies the installment payment method to those prisoners who have "three strikes" - three previous civil actions or appeals dismissed as frivolous, malicious, or for failure to state a claim. A prisoner litigant with three strikes may qualify to proceed under the § 1915(b) installment payment plan only if he makes an adequate showing that he "is under imminent danger of serious physical injury." § 1915(g).

Court records available on line indicate that the plaintiff has accumulated three strikes under § 1915(g): Kinard v. Hendricks, No. 2:07-cv-00461-JBF-JEB (E.D. Va. 2007); Kinard v. Sanchez, No. 2:07-cv-00355-JBF-JEB (E.D. Va. 2007); and Kinard v. Land, No. 2:07-cv-00079-JBF-TEM (E.D. Va. 2007). All three of these cases were dismissed under 28 U.S.C. § 1915A(b)(1), which authorizes summary dismissal of prison conditions cases as frivolous, malicious, or for failure to state a claim. In the instant action, Kinard complains that inadequate access to legal materials will harm his litigation efforts, but he states no facts indicating that he is in imminent danger of physical harm. He thus fails to satisfy the "imminent danger" exception under §1915(g) and may not proceed without prepayment of fees. Accordingly, I will summarily dismiss this action without prejudice, pursuant to § 1915(g), [2] and dismiss as moot his pending request to proceed in forma pauperis and his Motion for Temporary Restraining Order.

A separate Final Order will be entered herewith.


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