REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, Chief Magistrate Judge.
For the following reasons, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 2) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff's right to reopen it by paying the full $400.00 filing fee.
Frederick Banks ("Plaintiff") is a federal prisoner currently confined at the Northeast Ohio Correctional Center in Youngstown, Ohio. On November 4, 2013, Plaintiff initiated this action in the United States District Court for the Middle District of Pennsylvania. Along with his Complaint he submitted for filing a Motion for Leave to Proceed in forma pauperis. The case was transferred to this Court on November 8, 2013, with an order stating that the disposition of the Motion for Leave to Proceed in forma pauperis would be left to the discretion of the transferee court.
Plaintiff has filed a Complaint for Writ of Mandamus and Motion to Terminate Supervised Release. He alleges, inter alia, that Defendants engaged in a civil and criminal conspiracy to detain him for violating the terms of his supervised release on the eve of Halloween because they are Christians and he practices witchcraft. He also claims that he did not violate the terms of his supervised release and that he even went above and beyond what was required of him by volunteering in the community. He seeks to have his violation of supervised release charges dismissed and that his supervised release terminated. Additionally, he generally alleges that Defendants retaliated against him because he was attempting to establish a state religion and that they violated his rights under the Sioux Treaty of Fort Laramie of April 29, 1868, and the Northwest Ordinance of 1787.
Upon review, the Court finds that Plaintiff has filed more than three civil actions that have been dismissed for failure to state a claim upon which relief may be granted while he was a prisoner. Therefore, he is unable to proceed in forma pauperis in this matter and this case should be dismissed pursuant to 28 U.S.C. § 1915(g), also known as the "three strikes" rule of the Prison Litigation Reform Act, until such time Plaintiff pays the full $400.00 filing fee.
The Prison Ligation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Specifically, § 1915(e)(2), provides
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that - (A) the allegation of poverty is untrue; or (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to stats a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
The PLRA also provides for a "three strikes" rule in which leave to proceed in forma pauperis must be denied unless the prisoner is under imminent danger of serious physical injury. Specifically, 28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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).
The undersigned has reviewed the allegations of the Complaint in accordance with § 1915(e)(2) and have determined that Plaintiff's case should be dismissed pursuant to 28 U.S.C. § 1915(g). Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g) and court records indicate that he has had at least three prior civil actions dismissed in District Court that count as "strikes". See Banks v. Commonwealth of Pennsylvania, Third Circuit No. 10-1597 (Order dated April 8, 2010, and ultimately denying Plaintiff leave to appeal in forma pauperis because he has three strikes: Banks v. Hayward, W.D. Pa. Civ. No. 06-cv-509; Banks v. Hayward, W.D. Pa. Civ. No. 06-cv-1572; In Re: Banks, C.A. No. 06-1828)).
Furthermore, Plaintiff has not alleged that he is in any "imminent danger of serious physical injury, " and therefore he does not qualify for Section 1915(g)'s exception. See Abdul-Akbar v. McKelvie , 239 F.3d 307 (3d Cir. 2001) (overruling Gibbs v. Roman , 116 F.3d 83, 86 (3d Cir. 1997)). In making this determination, the court should construe all allegations in a complaint in favor of the plaintiff. Gibbs v. Cross , 160 F.3d 962, 965 ...