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Anthony R. Turner v. Matthew Cates

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


August 19, 2011

ANTHONY R. TURNER, PLAINTIFF,
v.
MATTHEW CATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 28 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), plaintiff has consented to all proceedings in this matter being held before a United States Magistrate Judge.

Plaintiff seeks leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) reads:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] 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.

Court records reveal that there are thirty separate actions, including this one, where Mr. Turner is plaintiff.*fn1 After reviewing those cases, the court finds three 1915(g) "strikes" which were all entered before this action was brought by plaintiff on June 29, 2011.

The first is CIV-S-08-2087 EFB P which was dismissed on December 7, 2010 for failure to state a claim upon which relief could be granted. The second is the appeal of that case; Ninth Circuit Case No. 11-15044. On March 16, 2011, the Ninth Circuit summarily affirmed the district court's dismissal for failure to state a claim. The mandate was issued on May 16, 2011.

Plaintiff's third "strike" arises from CIV-S-09-3326 FCD DAD P which was dismissed on July 20, 2010 because the complaint filed therein is duplicative of a complaint filed in a separate action. See July 1, 2010 Findings And Recommendations. In Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) the Fifth Circuit Court of Appeals characterized duplicative litigation as "malicious." In Cato v. U.S., 70 F.3d 1103, 1105 n. 2, (9th Cir. 1995) the Ninth Circuit, citing Bailey, agreed that where a complaint repeats pending or previously litigated claims, it is subject to dismissal under the in forma pauperis statute as being frivolous or malicious.

Accordingly, plaintiff has "struck out" pursuant to 28 U.S.C. § 1915(g). Further, the court has reviewed plaintiff's amended complaint*fn2 and finds there is no reasonable suggestion that plaintiff is in "imminent danger of serious physical injury." Generally speaking, in his amended complaint, plaintiff seeks damages for past wrongs.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff has "struck out" pursuant to 28 U.S.C. § 1915(g);

2. Plaintiff's June 29, 2011 request to proceed in forma pauperis is denied;

3. Plaintiff is directed to pay the $350 filing fee for this action within 21 days; and

4. Failure to pay the filing fee will result in this action being dismissed.


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