REPORT AND RECOMMENDATION
KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff Anthony Lolin Jimenez, Sr., an inmate at the Crowley County Correctional Facility (CCCF) in Olney Springs, Colorado, initiated this action by filing an application for leave to proceed in forma pauperis in connection with a pro se complaint. (See Doc. 1). In the complaint, plaintiff brings claims against Fidelity, an "Insurance/Investor" company located in Cincinnati, Ohio. (See Doc. 1, Complaint, at PAGEID#: 8). Plaintiff states that the basis for this Court's jurisdiction is "Diversity of Citizenship." (Id., at PAGEID#: 9). This matter is now before the Court on plaintiff's pauper application. (Doc. 2).
A prisoner's right to proceed in forma pauperis has been restricted by Congress. In accordance with section 804(d) of the Prison Litigation Reform Act (PLRA) of 1995, Pub. L. No. 104-134, 110 Stat. 1321, amending 28 U.S.C. § 1915:
28 U.S.C. § 1915(g).
Mr. Jimenez is prohibited by § 1915(g) from proceeding in forma pauperis in this case because at least three complaints filed by him while a prisoner were previously dismissed with prejudice as frivolous or for failure to state a claim upon which relief may be granted. See, e.g., Anthony Lolin Jimenez, Sr. v. Structured Asset Mortg. Investment II Inc., et al., Case No. 1:17-cv-534-CM (S.D.N.Y. Apr. 6, 2017) (Docs. 9-10) (sua sponte dismissing complaint "as frivolous" at screening stage);
In view of his three "strikes," Mr. Jimenez may not proceed in forma pauperis unless he falls within the statutory exception set forth in 28 U.S.C. § 1915(g), which applies to prisoners who are "under imminent danger of serious physical injury." Under the plain language of the statute, plaintiff must be in imminent danger at the time that he seeks to file his suit in federal court to qualify for the exception to the "three strikes" provision of § 1915(g). See Vandiver v. Vasbinder, 416 F.App'x 560, 561-62 (6th Cir.2011) (and cases cited therein) (holding in accordance with other circuit courts that "the plain language of § 1915(g) requires the imminent danger to be contemporaneous with the complaint's filing"). "By using the term `imminent,' Congress indicated that it wanted to include a safety valve for the `three strikes' rule to prevent impending harms, not those harms that had already occurred." Abdul-Akbar, 239 F.3d at 315.
Here, Mr. Jimenez has conceded in the complaint that he is not in imminent danger. (See Doc. 1, Complaint, at PAGEID#: 2). The complaint is also devoid of any facts that would suggest Mr. Jimenez is in imminent danger of serious physical injury. Therefore, he does not meet the exception to the "three strikes" rule set forth in 28 U.S.C. § 1915(g).
For these reasons, plaintiff's motion for leave to proceed in forma pauperis (Doc. 1) should be denied under 28 U.S.C. § 1915(g).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's application for leave to proceed in forma pauperis (Doc. 1) be
2. Plaintiff be ordered to pay the full $400 fee ($350 filing fee plus $50 administrative fee) required to commence this action within thirty (30) days, and that plaintiff be notified that his failure to pay the full $400 fee within thirty days will result in the dismissal of his action. See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within