IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 10, 2009
TAHEE ABD' RASHEED AKA JAMES E. SMITH, PLAINTIFF,
DEPT. OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 616(b)(1).
Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation at Kern Valley State Prison, brings this civil rights action against the California Department of Justice. Plaintiff alleges that he is not receiving responses to his requests for information regarding his prisoner trust account.
The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury."
This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Among the dismissals suffered by plaintiff that count as strikes under 1915(g) are case numbers 3:06-cv-05992-SI Smith v. Holm (N.D. Cal.) (dismissed 01/22/2007 for failure to state a claim); 1:07-cv-00509-LJO-SMS Smith v. Scribner (E.D. Cal.) (dismissed 05/04/2007 for frivolousness, maliciousness, and failure to state a claim); 1:06-cv-00310-AWI-NEW (DLB) PC (E.D. Cal.) (dismissed 05/09/2007 for failure to state a claim); and 1:07-cv-00531-AWI-SMS Smith v. Social Sec. Admin. Office, Employees (E.D. Cal.) (dismissed 05/09/2007 for failure to state a claim).
Here, Plaintiff alleges no conduct indicating that he is in imminent danger of serious physical injury. Plaintiff is therefore not entitled to proceed in forma pauperis.
Accordingly, on May 28, 2009, an order to show cause was entered, directing Plaintiff to show cause why his application to proceed in forma pauperis should not be denied. On June 17, 2009, Plaintiff filed a response to the order to show cause. Plaintiff states that "although prison Warden is allowing other prisoners to go into plaintiff account and spend money, yet plaintiff have not been able to spend any of his money since 1999."
There is no trust account statement on record in this case indicating that Plaintiff has a $350 balance in his inmate trust account. The Court will therefore grant Plaintiff thirty days in which to submit the following documents to the court: 1) A certified copy of his inmate trust account statement, indicating that Plaintiff has a balance of at least $350 in his inmate trust account; (2) A copy of Plaintiff's request on the appropriate CDCR form, indicating his request for withdrawal of $350 from his inmate trust account. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.
Accordingly, IT IS HEREBY ORDERED that Plaintiff is directed to submit the above documentation within thirty days of the date of service of this order.
IT IS SO ORDERED.
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