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FISHER v. KLINGEL

United States District Court, N.D. California


July 28, 2004.

RUDOLPH S. FISHER, Plaintiff(s),
v.
DEPUTY KLINGEL, et al., Defendant(s).

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER OF DISMISSAL

Plaintiff, a prisoner at the San Mateo County Jail and a frequent litigant in federal court, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that his legal mail was open unlawfully on two occasions in May 2004. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It 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). "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the [PLRA's] effective date." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir 1997). Plaintiff has had three or more prior prisoner actions dismissed by this court on the grounds that they are frivolous, malicious, or fail to state a claim upon which relief may be granted. See, e.g., Fisher v. Wright, No C 95-4134 CAL (PR) (ND Cal Dec 13, 1995) (order of dismissal for failure to state a claim); Fisher v. Goldman, No C 01-2911 VRW (PR) (ND Cal July 31, 2001) (same); Fisher v. Tucker, No C 01-3179 VRW (PR) (ND Cal Oct 16, 2001) (same); see also Fisher v. Smith, No C 04-2080 VRW (PR) (ND Cal June 15, 2004) (order fo dismissal for failure to exhaust administrative remedies). Plaintiff therefore may proceed in forma pauperis only if he is seeking relief from a danger of serious physical injury which is "imminent" at the time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir 1998). He is not.

  Because plaintiff has had three or more prior dismissals and is not under imminent danger of serious physical injury, his request to proceed in forma pauperis (docs # 2 & 4) is DENIED and the instant action is DISMISSED without prejudice to bringing it in a paid complaint.

  The Clerk shall close the file and terminate all pending motions as moot. No fee is due at this time.

 

SO ORDERED.
20040728

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