IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 23, 2009
EDDIE YOUNG, PLAINTIFF,
S. PARKS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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).
The plain language of the statute (§ 1915(g)) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999).
Court records, of which this court takes judicial notice,*fn1 indicate that plaintiff has filed no less than three civil rights actions which were dismissed for failure to state a claim prior to the filing of this complaint, on February 5, 2009. See Young v. Riley, CIV S-02-2297 LKK DAD P, December 14, 2004, findings and recommendations recommending that motion to dismiss pursuant to 28 U.S.C. § 1915(g) be granted; adopted by district court on March 29, 2005, citing the following cases: Young v. McCarger, CIV S-00-2393 GEB DAD P (dismissed on August 13, 2002, for failure to state a claim upon which relief can be granted); Young v. Edwards, CIV 02-2289 CAS (MLGx) (C.D. Cal.)(dismissed with prejudice on May 1, 2002, for failure to state a claim upon which relief may be granted); Young v. Briddle, CIV 98-714 (N.D. Cal.)(dismissed June 5, 1998, for failure to state claim for relief and failure to file an amended complaint to remedy the problem).
"Under the PLRA,*fn2 prisoners who have three complaints dismissed under section 1915(e)(2) are barred from filing additional in forma pauperis complaints unless they are 'under imminent danger of serious physical injury.'" 28 U.S.C. § 1915(g). Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). To meet the exception, plaintiff must have alleged facts that demonstrate that he was "under imminent danger" at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).
In the instant action, plaintiff alleges that on January 10, 2008, and January 11, 2008, defendant Parks placed handcuffs on him so tightly that it caused him to experience "adverse effects." Prior to January 12, 2008, defendants Andrade and Parks had prohibited Nurse Gestrogen from providing plaintiff with medical treatment. On January 12, 2008, defendant Parks verbally harassed plaintiff by telling him to kill himself. Defendant Andrade then placed placards over the windows of plaintiff's cell. Plaintiff got on his sink above the toilet then slipped and fell. Defendants Park and Andrade then used excessive force when they put plaintiff in a wheelchair and took him to the emergency room. At the emergency room, plaintiff was denied pain medication. As relief, plaintiff seeks money damages and any other further relief the court deems necessary.
Plaintiff has not demonstrated that, at the time of filing of his complaint, he was "under imminent danger of serious physical injury." The alleged deprivations occurred approximately 13 months before he filed his complaint.
Plaintiff will be directed, within twenty days, to show cause why he should not be barred from proceeding in this action under the three strikes provision of § 1915(g); moreover, he must submit the appropriate affidavit in support of a request to proceed in forma pauperis. Alternatively, he must pay the filing fee in full, within twenty days.
Accordingly, IT IS ORDERED that: 1. Plaintiff, within twenty days, must show cause why he should not be barred, pursuant to 28 U.S.C. § 1915(g), from proceeding in this action, and he must submit the appropriate affidavit in support of a request to proceed in forma pauperis on the form provided by the Clerk of Court;
2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner;
3. In the alternative, plaintiff must submit the entire filing fee of $350.00, within twenty days of the date of this order;
4. Failure to comply with this order will result in a recommendation that this action be dismissed.