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Ebone Leroy East v. Fee Tigert

December 12, 2011

EBONE LEROY EAST,
PLAINTIFF,
v.
FEE TIGERT,
DEFENDANT.



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 REQUIRING PAYMENT OF FILING (EFC NO. 4) FILING FEE DUE WITHIN THIRTY (30) DAYS

I. PROCEDURAL HISTORY

Ebone LeRoy East ("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 filed on November 22, 2010, pursuant to 42 U.S.C. § 1983. The action is proceeding on Plaintiff's Complaint against Defendant Tigert, a registered dental assistant at the California Correctional Institution, Tehachapi, California, in her individual capacity, for alleged violations of Plaintiff's rights under the First, Eighth and Fourteenth Amendments. Plaintiff seeks monetary relief.

Plaintiff was granted in forma pauperis status on November 24, 2010.

II. THREE STRIKES

A review of the record of actions and appeals filed by Plaintiff in the United States District Court reveals that Plaintiff has filed three or more actions and appeals that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. These dismissals are final.

Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 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. *fn1 Determining whether a dismissal counts as strike under Section 1915(g) requires the Court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if, in fact, "the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

The Court takes judicial notice that Plaintiff had the following four actions dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) for failure to state a cognizable claim under Section 1983. *fn2 The Court has examined these dismissals and finds each dismissal to be a strike under 28 U.S.C. § 1915(g):

1. East v. Gidcumb, 5:09-cv-01105-UA-E (PC) (C.D. Cal.), dismissed June 17, 2009, for failure to state a claim under Heck.

2. East v. Pace, 5:09-cv-01810-UA-E (PC) (C.D. Cal.), dismissed October 1, 2009, for failure to state a claim under Heck.

3. East v. San Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.), dismissed December 11, 2009, for failure to state a claim under Heck.

4. East v. Hoops, 5:10-cv-00949-UA-E (PC) (C.D. Cal.), dismissed July 8, 2010, for failure to state a claim under Heck and as duplicative. *fn3

Section 1915(e)(2) also requires appellate courts to dismiss all frivolous appeals. See O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 436 (D.C. Cir. 2007). The Court takes judicial notice of the dismissal in Plaintiff's appellate case, East v. Hoops, No. 10-56258, and upon examination finds it counts as a strike under Section 1915(g). The appellate court found in its order dated October 12, 2010 that the appeal was frivolous and denied Plaintiff's motion to proceed in forma pauperis. Plaintiff then ...


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