Zolo Agona Azania v. DANIEL R. McBRIDE

* The appellees were not served with process in the district court and are not
participating in this appeal. After an examination of the appellant’s brief and the
record, we have concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005*
Decided November 29, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3206
ZOLO AGONA AZANIA,
Plaintiff-Appellant,
v.
DANIEL R. McBRIDE et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division
No. 3:05cv296
Robert L. Miller, Jr.,
Chief Judge.
O R D E R
Zolo Agona Azania submitted a complaint under 42 U.S.C. § 1983 and a
petition to proceed in forma pauperis (“IFP”) in May 2005. His IFP petition did not
mention that he had previously accumulated “three strikes” under 28 U.S.C.
§ 1915(g) for bringing frivolous actions. The district court noted Azania’s three
strikes, denied his IFP petition, and informed him that unless he paid the $250
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-3206 Page 2
filing fee in full by June 10, his claim would be dismissed. Azania twice moved for
an extension of time to pay the fee; the district court denied both motions. On June
23 the district court dismissed the case for nonpayment but reminded Azania that
he was still obliged to pay the $250. Azania, not yet aware of the dismissal,
delivered the funds to prison officials on June 27 and then submitted a motion
representing that he had mailed the fee and asking the court to reconsider its
refusal to extend the payment deadline. The motion reached the court before the
money, and the court denied it, both because the fee had not been paid and because
the action already had been dismissed. Azania appeals.
Under § 1915(g) a prisoner cannot “bring a civil action” if he has “on 3 or
more prior occasions, while incarcerated . . . brought an action . . . 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 he faces “imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g). We had already told
Azania that he’d accumulated “three strikes” under § 1915(g) and would have to
pay in full before bringing future actions unless he was threatened with imminent
physical danger. Azania v. Moore, No. 96-4198, 1998 WL 847062, at *2 (7th Cir.
Nov. 20, 1998) (unpublished order). Since Azania was not in any danger, he was
required to pay the full filing fee before bringing his § 1983 action. See Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998). And where a prisoner seeks to obtain IFP status after a federal
judge has warned him that § 1915(g) applies to him, the suit should be immediately
terminated. See Sloan, 181 F.3d at 859. The district court, then, was not obliged
even to give Azania the extra time it did to pay the filing fee, and so the court could
not have abused its discretion by dismissing the action for nonpayment or for
declining to reopen the case when Azania represented that the fee was on the way.
Moreover, the eventual arrival of the filing fee changed nothing; Azania remained
obligated to pay after the dismissal because he violated § 1915(g) simply by
bringing the action. See id.
AFFIRMED.

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