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07-712 - SIMBA v. BRANCH et al


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07-712 - SIMBA v. BRANCH et al
March 27, 2008
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MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE WALLACE W. DIXON on 03/27/08, recommending that the court GRANT Defendants' motion to dismiss (docket no. 16) and DISMISS this lawsuit as frivolous under 28 U.S.C. § 1915 (g). It is further RECOMMENDED that this court should take judicial notice that this is Plaintiff's third strike under 28 U.S.C. § 1915(g) and find that in any subsequent lawsuits brought by Plaintiff, he should be required to first pay the prefiling fee unless he can show that he is under imminent danger of serious physical injury. It is further RECOMMENDED that the court enter a prefiling injunction enjoining Plaintiff from filing any additional ETS exposure claim lawsuits, unless he first obtains leave from the undersigned or from a United States District Court of competent jurisdiction, after Plaintiff attaches copies of the courts' orders and judgments from the following cases: Simba v. Hunt, No. 5:98-CT-691-F, E.D.N.C.; Simba v. Thompson, 5:99-CT-433-F, E.D.N.C.; Simba v. Walker, 1:02-CV-211-03-MU, W.D.N.C.; Simba v. Kenworthy, 5:07-CT-3004-FL, E.D.N.C.; Simba v. Kenworthy, 1:07CV712, M.D.N.C. Morever, Plaintiff must submit a detailed written statement explaining why the new lawsuit, motion, or allegation is materially different from the allegations in the foregoing lawsuits. Finally, because Plaintiff has the right to be heard before the recommended prefiling injunction is entered, Plaintiff shall be given 20 days in which to submit a brief stating reasons why the court should not enter a prefiling injunction against him. Thus, no later than 20 days from the filing date of this Recommendation, Plaintiff shall submit a brief stating reasons why the court should not issue a prefiling injunction against him. (Law, Trina) Modified on 3/28/2008 to edit text (Law, Trina).
June 17, 2008
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ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR., on 6/17/2008, adopting the Magistrate Judge's Recommendation; that Defendants' motion to dismiss (Docket No. 16) be GRANTED and Plaintiff's complaint is HEREBY DISMISSED as frivolous or for failure to state a claim. 28 U.S.C. § 1915(g). FURTHERMORE, the court HEREBY TAKES JUDICIAL NOTICE that this is Plaintiff's third strike under 28 U.S.C. § 1915(g). In any subsequent lawsuits brought by Plaintiff, he will be required to first pay the prefiling fee unless he can show that he is under imminent danger of serious physical injury. A judgment dismissing this action will be entered contemporaneously with this Order. (Lloyd, Donna)