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McNEIL v. U.S.
December 2, 2005.
DUNCAN J. McNEIL III, Plaintiff,
UNITED STATES et al., Defendants.
The opinion of the court was delivered by: HAROLD BAKER, Senior District Judge
The plaintiff, currently incarcerated in Spokane County Jail in
Washington, filed this action in federal court against the United
States and various other federal agencies, along with a petition
to proceed in forma pauperis. A look at the court's
computerized record of cases ("PACER") shows that the plaintiff
has filed at least 50 similar lawsuits in federal district courts
throughout the United States in 2005.
(http://pacer.uspci.uscourts.gov, query: McNeil, Duncan J., All
The Prison Litigation Reform Act does not allow a prisoner to
proceed in forma pauperis if that "prisoner has, on 3 or more
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 . . ., unless the prisoner is under
imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
The plaintiff has brought 3 or more actions while incarcerated
that were dismissed as frivolous. McNeil v. U.S. et al.,
05-CV-1633 (N.D. Ga. 2005) (7/11/05 Order dismissing case under
28 U.S.C. Section 1915(g) and listing prior cases dismissed as
frivolous). The Court therefore cannot grant the plaintiff's
petition to proceed in forma pauperis. The plaintiff does
allege that he is "presently under `imminent danger' of serious
physical injury . . . as defined by 28 U.S.C. Section 1915(g),
due to acts of intentional indifference to the plaintiff's
health, safety & welfare, in direct retaliation and retribution
in response to the plaintiff's lawful attempts to exercise his
constitutional rights to the execution and enforcement of the
`foreign judgments.'" (d/e 1, pp. 4-5). However, even assuming
(without deciding) these allegations qualify for the imminent
danger exception, that action could not be brought in the Central
District of Illinois. The plaintiff is incarcerated in Spokane,
Washington. The imminent danger he is allegedly suffering must
necessarily be occurring in Spokane, Washington, and all the
defendants subjecting him to imminent danger must also be in
Spokane. This Court is therefore the wrong venue for an imminent
danger claim by the plaintiff. 28 U.S.C. § 1391(b).
IT IS THEREFORE ORDERED THAT this case is dismissed, without
prejudice, pursuant to 28 U.S.C. Section 1915(g). To the extent
the plaintiff states a claim that he is under imminent danger of
serious physical injury within the meaning of
28 U.S.C. § 1915(g), that claim is dismissed for improper venue pursuant to
28 U.S.C. § 1391(b) and Fed.R.Civ.P. 12(b)(3).
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