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Ernest Miller v. M. Keating

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 24, 2011

ERNEST MILLER,
PLAINTIFF,
v.
M. KEATING, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On December 1, 2010, the undersigned ordered plaintiff to submit a complete application for leave to proceed in forma pauperis, or pay the appropriate filing fee. If plaintiff chose to file an application to proceed in forma pauperis, he was ordered to explain how he meets the imminent danger standard pursuant to 28 U.S.C. § 1915(g). Plaintiff's application (Doc. 9) and explanation are now pending before the court.

The PLRA's "three strikes" provision, found at 28 U.S.C. § 1915(g), provides as follows:

In no event shall a prisoner bring a civil action . . . under this section if the prisoner was, on three or more prior occasions, while incarcerated or detained . . ., brought an action . . . 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 physical injury.

Id.

Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the reasons set forth in the statute, such "strikes" preclude the prisoner from proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas petitions do not count as "strikes" under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights action, the district court may conclude that it counts as a "strike." See id. at n.12.

When in forma pauperis status is denied or revoked under § 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth Circuit reviewed a district court's screening stage dismissal of a prisoner civil rights action after finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128 F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the plaintiff's case was "properly dismissed." Id. at 1311. Similarly, in Rodriguez v. Cook, the Ninth Circuit dismissed an inmate's appeal in a prisoner civil rights action because it concluded that he was not entitled to proceed in forma pauperis on appeal pursuant to the "three strikes" provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated that the appellant "may resume this appeal upon prepaying the filing fee."*fn1

This conclusion is consistent with the conclusions reached in at least three other circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically held that "the prisoner cannot simply pay the filing fee after being denied IFP status" because "[h]e must pay the filing fee at the time he initiates the suit." Id. at 1236 (emphasis in original). The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002).

This court has found plaintiff ineligible to proceed in forma pauperis several times due to his filing three or more actions that had been dismissed as frivolous, malicious or as failing to state a claim. See e.g., Miller v. McGrath, Case No. 2:08-0070 HWG-KSC; Miller v. Stowell, 2:10-1605 GEB-DAD; Miller v. Brown, 2:09-3403 MCE-GGH.

Plaintiff was provided an opportunity to explain how he would meet the imminent danger provision of § 1915(g). Plaintiff's explanation, however, fails to show that he meets the exception to the three strikes provision. Plaintiff informs the court that he is in imminent danger because the defendants are confiscating his writing material and incoming mail, including money order, pictures, and packages. He also makes the conclusory statement that staff is trying to fatally hurt him by murder. He fails to explain this statement, and the undersigned finds such conclusory statements insufficient to show he is in any imminent danger of serious physical injury. Additionally, plaintiff's complaint similarly raises issues with receipt of his inmate mail, and does not support any conclusion that he is under any imminent danger of serious physical injury.

Based on the foregoing, the undersigned recommends that plaintiff's motion to proceed in forma pauperis (Doc. 9) be denied, plaintiff be barred from proceeding in forma pauperis in this action under the three strikes provision of 28 U.S.C. § 1915(g), and this case dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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