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Dean v. Street

April 8, 2010

ALTON E. DEAN, PLAINTIFF,
v.
MICHELLE STREET, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

By Order, filed on March 24, 2010, plaintiff's complaint was dismissed with leave to amend and his motion for a temporary restraining order (TRO) was vacated. In addition, plaintiff was directed to file an in forma pauperis affidavit or to pay the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff has failed to file an in forma pauperis affidavit or to pay the required filing fee, but has purported to file an amended complaint along with another putative motion for a TRO, notwithstanding that the court directed plaintiff to file another TRO motion only if it were properly supported and once he had filed an amended complaint setting forth colorable allegations. [Emphasis added].

Three Strikes Litigant

Although plaintiff has failed to provide an in forma pauperis affidavit, it appears that his doing so would be futile. The Prison Litigation Reform Act of 1995 (PLRA) 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 court now takes judicial notice*fn1 of the national pro se "three strikes" database, and the cases therein cited, which a Ninth Circuit committee has directed this court to access for PLRA three-strikes screening purposes, wherein plaintiff is identified as a litigant with no less than five strikes. The court herein lists the three cases which expressly state in the order clause that the respective case was being dismissed for failure to state a claim: 1) Dean v. Sullivan, 2:98-00717 LKK DAD P, 3/22/99 (action dismissed for failure to state a cognizable claim by Order, filed on March 22, 1999); Dean v. Melching, et al.,1:00-5522 AWI DLB P (action dismissed with prejudice for plaintiff's failure to file a second amended complaint and failure to state a claim upon which relief may be granted by Order, filed on October 26, 2000); and 3) Dean v. Cavagnaro, et al., 1:09-0852 SMS P (action dismissed with prejudice for plaintiff's failure to state any claims upon which relief may be granted under section 1983 by Order filed on October 21, 2009). Each of these cases was dismissed prior to the filing of the instant complaint, on March 22, 2010 (or by application of the mailbox rule,*fn2 on March 19, 2010).

The court finds that plaintiff is precluded from proceeding in forma pauperis in this action unless plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). 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, 1053 (9th Cir. 2007) ("it is the circumstances at the time of the filing of the complaint that matters for purposes of the 'imminent danger' exception under § 1915(g))"; see also, Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); 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, 884 (5th Cir.1998).

The original complaint that underlies this action had to be dismissed due to plaintiff's having heaped one unrelated allegation upon another and for his failure to comply with Rule 8 of the Federal Rules of Civil Procedure. See Order, filed on March 24, 2010, pp. 1-5. Therefore, the court finds that plaintiff failed to meet the "imminent danger of serious physical injury" exception and the undersigned finds that plaintiff is barred by the three-strikes provision of § 1915(g) from proceeding in this action in forma pauperis. If this case were to proceed, plaintiff would be required to pay the filing fee forthwith; however, for the reasons set forth below, the court will recommend dismissal of this action with prejudice.

Underlying Amended Complaint

As plaintiff was previously informed, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the ...


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