The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
Plaintiff, a California prisoner proceeding pro se, filed the
above-titled civil rights action on February 26, 2004, claiming his
confinement is unlawful and seeking money damages, on the grounds that
the Attorney General of the State of California did not file a response
to his traverse in a habeas action also filed in this court. Plaintiff
seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 ("PLRA"), enacted April 26,
1996, provides that a prisoner may not bring a civil action or appeal a
civil judgment 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).
Prior to the filing of the instant action, plaintiff, while a
prisoner, filed more than three actions that were dismissed by this Court
on the grounds that such actions were frivolous, malicious, or failed to
state a claim upon which relief may be granted. See, e.g., Evans v.
Carey, C 02-2033 MMC (PR) (N.D. Cal. Aug. 16, 2002); Evans v. Castro, C
01-2498 MMC (PR) (N.D. Cal. Aug. 14, 2001); Evans v. May, C 01-1524 MMC
(PR) (N.D. Cal. May 7, 2001); Evans v. Horsely, C 00-1489 MMC (PR) (N.D.
Cal. June 6, 2001); Evans v. Plummer, No. C 99-5203 MMC (PR) (N.D. Cal.
Dec. 22, 1999); In re Evans, No. C 97-4468 MMC (PR) (N.D. Cal. Feb. 10,
Because plaintiff has suffered three or more such prior dismissals and
is not under imminent danger of serious physical injury, the instant
action is hereby DISMISSED without prejudice to plaintiff's bringing it
in a complaint as to which plaintiff pays the filing fee. See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). No fee is due with respect
to the instant complaint.
This order terminates docket numbers 2 and 4 and any other pending
The Clerk shall close the file.
[EDITOR'S NOTE: THIS PAGE CONTAINED CERTIFICATE OF SERVICE]
[ ] Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried
and the jury has rendered its verdict.
[X] Decision by Court. This action came to trial or
hearing before the Court. The issues have been
tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the instant action is hereby DISMISSED
without prejudice to plaintiff's bringing it in a complaint as to which
plaintiff pays the filing fee.
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