The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (Doc. 239.) ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS
ORDER VACATING ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS (Doc. 4.)
ORDER VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE PAYMENTS FOR THIS ACTION (Doc. 5.)
ORDER REQUIRING PLAINTIFF TO PAY THE $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS, OR THIS CASE WILL BE DISMISSED THIRTY DAY DEADLINE
I. RELEVANT PROCEDURAL HISTORY
Bryan Ransom ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 21, 2005, together with an application to proceed in forma pauperis. (Docs. 1, 2.) On February 17, 2005, the Court granted Plaintiff leave to proceed in forma pauperis and issued an order directing the California Department of Corrections and Rehabilitation ("CDCR") to send payments to the Court from Plaintiff's prison trust account for the $350.00 filing fee for this action. (Docs. 4, 5.) This action now proceeds on the Amended Complaint filed by Plaintiff on August 30, 2005. (Doc. 8.)
On July 21, 2010, Defendants filed a Motion to revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g). (Doc. 239.) On July 29, 2010, Plaintiff filed an Opposition to the Motion. (Docs. 240, 241.) On August 5, 2010, Defendants filed a Reply to the Opposition. (Doc. 242.)
II. MOTION TO REVOKE IN FORMA PAUPERIS STATUS
Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. "Plaintiffs normally must pay $350 to file a civil complaint in federal district court, 28 U.S.C. § 1914(a), but 28 U.S.C. § 1915(a)(1) allows the district court to waive the fee, for most individuals unable to afford it, by granting in forma pauperis status." Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, § 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . 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." The imminent danger "exception applies if the danger existed at the time the prisoner filed the complaint." Andrews, 493 F.3d at 1053, citing United States v. Jackson, 480 F.3d 1014, 1018-19 (9th Cir. 2007) (emphasis added).
Defendants argue that the Court should revoke Plaintiff's in forma pauperis status under § 1915(g) because, at the time this case was filed, Plaintiff had three prior actions dismissed on the grounds that they were frivolous, malicious or failed to state a claim. Defendants present evidence that in Plaintiff's case Ransom v. Westphal, et al., Case No. 1:08-cv-01327-DMS-ABJ, the Court for the Eastern District of California found that Plaintiff had previously filed three actions that were dismissed for being frivolous, malicious, or failed to state a claim: (1) Ransom v. Doe, et al., Case No. 96cv8204 RSWL (CT) (C.D. Cal. Dec. 10, 1996, dismissed for failure to state cognizable claims), (2) Ransom v. Chief Williams, et al., Case No. 96cv8203 MRP (CT) (C.D. Cal. Dec. 10, 1996, dismissed for failure to state cognizable claims), and (3) Ransom v. Sandoval, et al., Case No. 01CV513 JM (JAH) (S.D. Cal, Jan. 10, 2002, dismissed for failure to state a claim upon which relief can be granted). Defendants request the Court to take judicial notice of the decision in Ransom v. Westphal, et al. and of the dismissals in Plaintiff's three cases listed above. Defendants also argue that Plaintiff was not under imminent danger of serious physical injury at the time he filed the complaint commencing this action, because Plaintiff's complaint addressed incidents and events that occurred some three to five years earlier.
In opposition, Plaintiff argues that the Court should not revoke his in forma pauperis status because this action is meritorious and such revocation would reach beyond the congressional goal of reducing frivolous prison litigation in federal court pursuant to § 1915(g). Plaintiff also argues that he was under imminent danger of serious physical injury when he filed his complaint, as demonstrated by his claim of deliberate indifference against defendants Adams, Atkinson, Canton and Flores. Plaintiff requests the Court to deduct the $350.00 filing fees for this action from the award he expects against defendant Pear as a result of the Court's order of August 26, 2008 in this action which granted summary judgment against defendant Pear.
Defendants reply that Plaintiff's argument based on the merit of his case fails because § 1915(g) establishes a threshold procedural question and does not ask the court to evaluate the merits of the suit. Defendants also reply that Plaintiff's deliberate indifference claim in the complaint does not demonstrate he was under imminent danger at the time the complaint was filed, because the claim concerns allegations that defendants were indifferent to Plaintiff's safety in September 2000, long before the complaint was filed.
The Court takes judicial notice of the decision in Ransom v. Westphal, et al.,Case No. 1:08-cv-01327-DMS-ABJ, and of Plaintiff's three cases dismissed for failure to state a claim.*fn1 Plaintiff does not dispute that he had three prior cases dismissed for failure to state a claim. All three of these cases were dismissed before the present action was filed in 2005. Plaintiff is therefore subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma ...