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Levy v. Gates

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


December 9, 2009

ENRICO LEVY, INMATE #A-93734, PLAINTIFF,
v.
WARDEN GATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Plaintiff, a prisoner in the Menard Correctional Center, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). He also seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Docs. 2).

A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "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). In the Seventh Circuit, a strike may be counted if any portion of an action is dismissed for these enumerated grounds. See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004).

Plaintiff has had three or more prior prisoner actions dismissed, or partially dismissed, on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Levy v. State of Illinois Dept. Of Corrections, No. 06-cv-7799 (N.D. Ill.); Levy v. State of Illinois, No. 96-cv-4705 (N.D. Ill.); Levy v. Illinois Dept. Of Corrections, No. 92-3336 (N.D. Ill.). Further, the allegations in the instant complaint do not show that Plaintiff is under imminent danger of serious physical injury.

IT IS THEREFORE ORDERED that the motion for leave to proceed in forma pauperis (Doc. 2) is DENIED. This action is DISMISSED without prejudice to Plaintiff bringing these claims in a fully pre-paid complaint. All other pending motions are DENIED as MOOT.

The Clerk shall CLOSE THIS CASE.

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20091209

© 1992-2009 VersusLaw Inc.



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