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Edward L. Turner v. Derral G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 25, 2011

EDWARD L. TURNER,
PLAINTIFF,
v.
DERRAL G. ADAMS, ET AL., FEE DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS AND DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING

Plaintiff Edward L. Turner ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff in forma pauperis status on October 22, 2010.

The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 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).

Court records reveal that Plaintiff has accumulated three strikes as of August 29, 2006.

The Court takes judicial notice of the following cases that qualify as strikes pursuant to 28 U.S.C. § 1915(g): (1) Turner v. Contra Costa County, et al., 3:97-cv-03015-MHP (N.D. Cal.) (dismissed November 17, 1997 for failure to state a claim); (2) Turner v. Coleman, 3:02-cv-5731-MHP (N.D. Cal.) (dismissed December 20, 2002 for failure to state a claim); and (3) Turner v. Bennett, et al., 3:06-cv-00491 (N.D. Cal.) (dismissed August 29, 2006 for failure to state a claim, and as malicious and frivolous).*fn1 Plaintiff thus is not allowed to proceed in forma pauperis in this action unless Plaintiff can demonstrate that Plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

Prisoners qualify for the imminent danger exception based on the alleged conditions at the time the complaint was filed. Andrews v. Cervantes, 493 F.3d 1047. 1052 (9th Cir. 2007). The imminent danger exception requires that a prisoner allege a danger that is "ready to take place" or "hanging threateningly over one's head." Id. at 1056. The Ninth Circuit found that "requiring a prisoner to 'allege [] an ongoing danger' . . . is the most sensible way to interpret the imminency requirement." Id. (quoting Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (per curiam)). Thus, "a prisoner who alleges that prison officials continue with a practice that has injured him or others similarly situated in the past will satisfy the ongoing danger standard and meet the imminence prong of the three-strikes exception." Id. at 1056-57 (quotations omitted).

Here, Plaintiff's original complaint fails to qualify Plaintiff for the imminent danger exception. Plaintiff complained of oppressive behavior by Defendants, violating a state court order that required Plaintiff to have regular phone calls and legal correspondence with his counsel. Pl.'s Compl. 2; Ex. A, Doc. 1. This fails to demonstrate imminent danger of serious physical injury. Because Plaintiff does not qualify for the imminent danger exception, he was required to pay the filing fee in full before proceeding in this action. The Court will thus revoke Plaintiff's in forma pauperis status and dismiss this action, without prejudice to refiling if accompanied by the $350.00 filing fee.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's in forma pauperis status is REVOKED;

2. This action is DISMISSED without prejudice for failure to pay the filing fee; and

3. The Clerk of the Court is directed to close this action.

IT IS SO ORDERED.


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