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Christopher Scott Rider v. M.R. Goldy

July 13, 2011

CHRISTOPHER SCOTT RIDER, PLAINTIFF,
v.
M.R. GOLDY, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on defendants' motion to declare plaintiff a vexatious litigant and to revoke plaintiff's in forma pauperis ("IFP") status. Plaintiff has filed an opposition to the motion, and defendants have filed a reply.

BACKGROUND

Plaintiff is proceeding on his second amended complaint against defendants Schwab and Goldy. Therein, plaintiff alleges that defendant Schwab used excessive force against plaintiff and that defendant Goldy failed to protect plaintiff from a known risk of serious harm, both in violation of the Eighth Amendment. (Sec. Am. Compl. (Doc. No. 17) at 3.) Plaintiff seeks monetary damages and an order prohibiting "state correctional officers from using force against inmates." (Id.)

DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REVOKE PLAINTIFF'S IFP STATUS

I. Defendants' Motion

Defense counsel argues that plaintiff is a vexatious litigant. Specifically, counsel asserts that plaintiff has filed at least five actions in the last seven years that have been adversely determined against him. Counsel also argues that the court should revoke plaintiff's IFP status because on at least three occasions prior to filing this action plaintiff has had civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, thereby incurring a strike in each instance under 28 U.S.C. § 1915(g). Counsel lists six actions, three filed in the Northern District of Indiana and three filed in the Eastern District of California, that defense counsel asserts have been adversely determined against plaintiff in the last seven years.*fn1 Counsel also represents that in these earlier-filed civil actions, the court dismissed plaintiff's complaint for failure to state a claim upon which relief could be granted. (Defs.' Mot. to Dismiss (Doc. No. 27-1) at 2-7.)

II. Plaintiff's Opposition

In opposition to defendants' motion, plaintiff argues that he qualifies for IFP status under the imminent danger exception provided for by 28 U.S.C. § 1915(g). In this regard, plaintiff argues that at the time he filed this action he was in imminent danger of serious physical injury. Specifically, plaintiff alleges that he has been assaulted on several occasions during his incarceration because of his status as a sex offender and is therefore continually in imminent danger. (Pl.'s Opp'n. to Defs.' Mot. to Dismiss (Doc. No. 34) at 1-3.) /////

III. Defendants' Reply

In reply, defense counsel argues that plaintiff has merely alleged a generalized threat to his safety because of his status as a sex offender, which does not meet the imminent danger of serious physical injury exception under § 1915(g). (Defs.' Reply (Doc. No. 38) at 1-3.)

ANALYSIS

I. Vexatious Litigants

Rule 151 of the Local Rules of Court for the Eastern District of California

provides:

On its own motion or on motion of a party, the Court may at any time order a party to give a security, bond, or undertaking in such amount as the Court may determine to be appropriate. The provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a procedural Rule of this Court on the basis of which the Court may order the ...


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