IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
May 5, 2005
D.L. TAYLOR, AKA IVORY CURTIS TAYLOR, PLAINTIFF,
MSNBC, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION (Docket no. 2)
Plaintiff D.L. Taylor, also known as Ivory Curtis Taylor, is a prisoner of the State of California who is incarcerated at Pelican Bay State Prison. Since 1998 he has filed ten in forma pauperis prisoner civil rights actions in this Court. None of those actions has survived the Court's initial review under 28 U.S.C. § 1915(e). Four actions were dismissed for failure to exhaust administrative remedies under 42 U.S.C. § 1997e. See Taylor v. Dillard, C 98-1641 CW (PR); Taylor v. SHU Law Library, C 02-4194 CW (PR); Taylor v. MSNBC, C 04-2203 CW (PR); Taylor v. PBSP SHU Law Library, C 04-3192 CW (PR). Two were dismissed for failure to state a claim upon which relief may be granted. See Taylor v. Pelican Bay State Prison, C 98-3729 CW (PR); Taylor v. Carl, C 00-2840 CW (PR). One was dismissed as legally frivolous. See Taylor v. MSNBC, C 02-5474 CW (PR). And two were dismissed for failure to comply with the Court's order to file a completed in forma pauperis application. See Taylor v. Terhune, C 99-4460 CW (PR), Taylor v. MSNBC, C 04-1162 CW (PR).
In the present action, Plaintiff seeks leave to proceed in forma pauperis in order to challenge alleged racist and sexist acts perpetrated upon him by prison officials. These allegations have been raised in several of Plaintiff's prior actions as well.
For the reasons set forth below, leave to proceed in forma pauperis is DENIED and this action is DISMISSED pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act of 1995, which was enacted on April 26, 1996, provides that a prisoner may not bring a civil action or appeal a civil judgment under the in forma pauperis provisions of 28 U.S.C. § 1915:
[I]f 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). A prisoner barred from proceeding in forma pauperis pursuant to § 1915(g) may proceed under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Of the ten prisoner actions filed in this Court by Plaintiff since 1998, three have been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted. See Taylor v. MSNBC, C 02-5474 CW (PR) (legally frivolous because unintelligible)*fn1; Taylor v. Carl, C 00-2840 CW (PR) (failure to state a claim); Taylor v. Pelican Bay State Prison, C 98-3729 CW (PR) (failure to state a claim).
The Court has reviewed the orders of dismissal it issued in these three cases and finds that they satisfy the requirements of § 1915(g). See Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005). As such, any non-habeas civil action filed by Plaintiff, including the present action, is now subject to the provisions of § 1915(g).
In accord with § 1915(g), the Court has conducted a preliminary review of the present action to assess the nature of Plaintiff's allegations and to determine whether he alleges facts which bring him within the "imminent danger of serious physical injury" exception to § 1915(g). The Court finds that Plaintiff's allegations of racist and sexist acts committed by Pelican Bay State Prison officials against him over a course of years and his inability to administratively exhaust his complaints by way of the prison grievance system do not qualify for the "imminent danger" exception to § 1915(g).
Moreover, because the claims are duplicative of claims raised and dismissed in prior actions and are otherwise without legal merit, the Court finds that it would be futile to grant Plaintiff leave to amend. Furthermore, if Plaintiff did amend to allege cognizable claims for relief he would be required to pay the $250.00 filing fee because he is now barred from proceeding in forma pauperis in this Court as a matter of course. Because Plaintiff alleges that he is impoverished and his prison trust account statement shows that his balance is $0.00 and he has a restitution hold of $1444.11 placed on his account, however, the Court finds that he would be unable to pay the $250.00 fee even if granted leave to amend at this time.
Accordingly, this action is DISMISSED without prejudice under § 1915(g) and without leave to amend. Leave to proceed in forma pauperis is DENIED.
Plaintiff is advised that the Court will continue to review under § 1915(g) all future actions he files while he is incarcerated in which he seeks in forma pauperis status. Plaintiff is not barred from proceeding with his claims in a paid complaint.
The Clerk of the Court shall enter judgment and terminate all pending motions in this action.
IT IS SO ORDERED.
Pursuant to the dismissal Order signed today, this action is DISMISSED without prejudice under 28 U.S.C. § 1915(g).
CLAUDIA WILKEN United States District Judge