FEATHER GORBEY v. DUNBAR (2019)

In these consolidated appeals, Michael Owl Feather-Gorbey (Gorbey), a District of Columbia inmate housed in Maryland, appeals the district court's dismissal of his civil rights complaint without prejudice after finding that Gorbey failed to establish that he was in imminent danger of serious physical injury. We affirm.

It is undisputed that Gorbey has had, on at least three occasions, an action or appeal dismissed on the grounds that it was frivolous, malicious, or failed to state a claim. Accordingly, Gorbey cannot proceed with his civil action without prepayment of filing fees unless he shows that he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g) (2012).

We review the district court's decision de novo. Richey v. Dahne, 807 F.3d 1202, 1206 (9th Cir. 2015). We note that the imminent danger “must exist at the time the complaint or the appeal is filed, not when the alleged wrongdoing occurred.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The inmate must allege “ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Id. We agree with the district court that Gorbey failed to show that he was in imminent danger of serious physical injury. Accordingly, we affirm the court's orders vacating its initial grant of in forma pauperis status and dismissing the complaint. We deny Gorbey's motions for relief and sanctions, his motion to compel, and his motion for judicial notice of new evidence.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.