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Will Moses Palmer, Iii v. Nurse Lemoy

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 9, 2012

WILL MOSES PALMER, III,
PLAINTIFF,
v.
NURSE LEMOY, ET AL.,
DEFENDANTS.

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

ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO SECTION 1915(g) AND DISMISSING ACTION WITHOUT PREJUDICE Docs. 1 & 2

On November 14, 2011, Plaintiff Will Moses Palmer ("Plaintiff"), a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 and filed a motion to proceed in forma pauperis. Docs. 1 & 2.

A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff filed has three actions that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. 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 three 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. 28 U.S.C. § 1915(g).*fn1 Determining whether Plaintiff's actions count as strikes under § 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, 398 F.3d 1113 at 1121.

The Court takes judicial notice of the following cases which count as strikes: 1) Palmer v. Lamarque, 3:03-cv-00956-SI (C.D. Cal.), Doc. 6 (dismissed May 16, 2003, for failure to state a claim); 2) Palmer v. Johnson, 2:05-cv-07121-UA-E (C.D. Cal.), Doc. 2 (dismissed November 2, 2005, for failure to state a claim upon which relief may be granted); and 3) Palmer v. Johnson, 2:05-cv-08547-ABC (C.D. Cal.), Doc. 24 (dismissed December 1, 2006, for failure to state a claim).

In Palmer v. Johnson, 2:05-cv-08547-ABC, the Court dismissed Plaintiff's complaint with prejudice because the defendant was a United States Magistrate Judge with absolute judicial immunity. See Doc. 24. In its dismissal order, the Court noted that Plaintiff sued Magistrate Judge Johnson because he did not receive the relief he hoped for in a prior habeas case. See id. The dismissal order demonstrates that the complaint failed to state a claim and was legally frivolous because the defendant had absolute judicial immunity. See Andrews, 398 F.3d 1113 at 1121 (for § 1915(g) purposes, a case "is frivolous if it is 'of little weight or importance: having no basis in law or fact'"). This was the second lawsuit Plaintiff initiated against Magistrate Judge Johnson. The first was dismissed for failure to state a claim upon which relief may be granted. See Palmer v. Johnson, 2:05-cv-07121-UA-E (C.D. Cal.). The Court finds that the second Palmer v. Johnson case, 2:05-cv-08547-ABC (C.D. Cal.), which was dismissed with prejudice, also failed to state a claim upon which relief may be granted and was frivolous.

Therefore, Plaintiff has three or more strikes which occurred before Plaintiff filed this action on November 14, 2011. Moreover, Plaintiff does not demonstrate that he faced imminent danger of serious physical injury at the time he filed his complaint. The Court finds that Plaintiff should be precluded from proceeding in forma pauperis and dismissal of Plaintiff's action is appropriate. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (finding that denial of in forma pauperis status under § 1915(g) mandated dismissal since a prisoner must pay the filing fee at the time of initiating the suit).

Based on the foregoing, the Court HEREBY ORDERS:

1. Plaintiff's motion to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g); and

2. This action is DISMISSED without prejudice.

IT IS SO ORDERED.


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