The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed without prejudice to plaintiff making the
same allegations in a complaint for which he pays the full filing fee at
the time of filing the complaint.
IT IS SO ORDERED AND ADJUDGED.
Roger E. Grondorf, currently in custody at the Napa State Hospital,
filed this pro se civil rights action under
42 U.S.C. § 1983, claiming that defendant denied him various benefits at the
state mental hospital. His complaint is now before the court for review
pursuant to 28 U.S.C. § 1915 and 1915A. His application for leave to
proceed in forma pauperis also is before the court for
A detailed description of Grondorf's custodial status is found in the
July 30, 2003 Order of Dismissal in Grondorf v. Graziani, Case
No. C 02-5958 SI. According to evidence provided in Case No. C 02-5958
SI, in 1999 Grondorf was found not guilty by reason of insanity to a
charge of assault with a deadly weapon likely to produce great bodily
injury and was committed to a state mental hospital for a term not to
exceed four years. Grondorf's confinement following a
not-guilty-by-reason-of-insanity determination appears to make him a
prisoner for purposes of 28 U.S.C. § 1915 and 1915A. See
generally In re Franklin, 7 Cal.3d 126, 138, 143-44 (Cal. 1972)
(class of persons committed to a state mental hospital following finding
of not guilty by
reason of insanity was different from class of persons subjected to
ordinary civil commitment proceedings).
A prisoner may not bring a civil action in forma pauperis
under 28 U.S.C. § 1915 "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).
Grondorf has had three or more prior prisoner actions dismissed by this
court because they were frivolous, malicious, or failed to state a claim
upon which relief may be granted. The earlier dismissed actions include
Grondorf v. Mansini, C 97-4359 SI, Grondorf v. Forensic
Medical Group, C 97-4535 SI, Grondorf v. Nordin, C 98-3493
SI, and Grondorf v. Ingalls, C 03-1956 SI. Because Grondorf has
had at least three prior dismissals and is not under imminent danger of
serious physical injury, his request to proceed in forma
pauperis is DENIED and this action is DISMISSED. (Docket # 2) This
dismissal is without prejudice to Grondorf making the same allegations in
a complaint for which he pays the full $150.00 filing fee at the time of
filing the complaint. The Clerk shall close the file.
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