The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to revoke plaintiff's in forma pauperis status and for dismissal filed July 15, 2009, on behalf of defendants Bartos, Dangler, Gamberg and Tilton. On September 9, 2009, defendants Chrones and Grannis filed a motion to join this motion. Also pending is plaintiff's July 24, 2009, motion for a preliminary injunction. After carefully reviewing the record, the court recommends that defendants' motion be granted and plaintiff's motion be denied.
Motion to Revoke In Forma Pauperis Status
This action is proceeding on the original complaint filed January 29, 2009. Plaintiff alleges that while housed at High Desert State Prison (HDSP) in 2006, 2007 and 2008, defendants Weeks, Bartos and Gamberg ordered several gang leaders to kill plaintiff in retaliation for his filing of administrative grievances. Plaintiff also alleges that defendants destroyed his personal property. At the time he filed this action, plaintiff was housed at the California Medical Facility (CMF).
28 U.S.C. § 1915(g) provides,
In no event shall a prisoner bring a civil action or appeal in a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more 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.
Defendants argue that plaintiff has had at least three prior actions dismissed or otherwise rejected as frivolous, malicious or for failing to state a claim. Attached as an exhibit to defendants' motion is a copy of an order filed on July 10, 2000, in Francis v. Los Angeles County, CIV 00-2641 DT (CT), dismissing the action for failing to state a claim upon which relief may be granted. Defendants' Exhibit 3. Also attached is an order filed June 28, 2004, in Francis v. Alameida, CIV S-03-2586 GEB DAD P dismissing the action for failing to state a claim upon which relief may be granted. Defendants' Exhibit 4.
Finally, attached as an exhibit to defendants' motion is an order filed May 21, 2007, in Francis v. Bryant, et al., CIV 1:04-5077 LJO SMS P, dismissing the action as barred by the statute of limitations and for plaintiff's failure to exhaust administrative remedies. Defendants' Exhibit 5. The Ninth Circuit has not decided whether a dismissal for failure to exhaust administrative remedies constitutes a strike under § 1915(g). See O'Neal v. Price, 531 F.3d 1146, 1155 no. 9 (9th Cir. 2008). However, in Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910 (2007), the Supreme Court held that if the allegations are barred by the statute of limitations, the complaint is subject to dismissal for failure to state a claim. Accordingly, the court finds that CIV 1:04-5077 is a strike under 28 U.S.C. § 1915(g) because it was dismissed alternatively as barred by the statute of limitations.
In his opposition filed September 16, 2009, plaintiff does not seriously dispute that he has three prior strikes. Instead, plaintiff argues that he falls within the "imminent injury" exception to § 1915(g). "Under the PLRA,*fn1 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).
As discussed above, the complaint alleges that plaintiff's life was in danger while he was housed at HDSP when defendants ordered gang members to kill plaintiff. At the time he filed this action, plaintiff was housed at CMF, where he is still housed. The complaint contains no allegations regarding threats to plaintiff's safety at CMF.
In the opposition, plaintiff suggests that there could be gang leaders at CMF willing to follow the orders of the HDSP defendants to kill him. Plaintiff argues that defendants' orders to have him killed still exist to this day. Plaintiff also argues that if he is transferred from CMF to HDSP, he will be in danger.
Plaintiff's complaint clearly challenges conditions at HDSP. He has not amended his complaint to include claims regarding threats to his safety at CMF. Plaintiff's suggestion that there may be gang leaders at CMF willing to carry out the orders of the HDSP defendants is speculative. For these reasons, the court does not find that plaintiff was under imminent danger of serious injury at the time he filed the complaint. His suggestion that he may be transferred back to HDSP is also speculative and unsupported.
Because plaintiff had three prior actions dismissed for failing to state a colorable claim for relief, defendants' motion to revoke plaintiff's in forma pauperis status should be granted. Following adoption of these findings and recommendations, plaintiff will be granted an opportunity to pay the filing fee. If ...