Plaintiff is a state prisoner, proceeding pro se, presenting claims pursuant to 42 U.S.C. §§ 1983 and 1985, the Americans with Disabilities Act, and supplemental state law claims. He has also filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. On August 11, 2011, plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.
The federal in forma pauperis statute includes a limitation on the number of actions in which a prisoner can proceed in forma pauperis. The statute provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [§ 1915] 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.
28 U.S.C. § 1915(g). Thus, the court must determine whether plaintiff has, on three or more occasions prior to the filing of this new action, brought a civil action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief could be granted. A "plaintiff has 'brought' an action for the purposes of § 1915(g) when he submits a complaint and request to proceed in forma pauperis to the court." O'Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008). Where a district court disposes of a prisoner's complaint without prepayment of fees on the grounds that the submitted complaint is frivolous, malicious or fails to state a claim upon which relief may be granted, the complaint has been "dismissed" for purposes of § 1915(g). Id. at 1153. "[A] dismissal ripens into a strike for §1915(g) purposes on the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expires, if he did not." Silva v. DiVittorio, 658 F.3d 1090, 1100 (9th Cir. 2011) (internal quotation marks omitted).
Here, court records reveal that plaintiff has accumulated at least three such strikes in the United States District Court for the Central District of California. Those cases counting against plaintiff as strikes for purposes of §1915(g) were described by the court in Senator v. Alameida, No. CIV S-03-1701 LKK KJM P (E.D. Cal. Aug. 16, 2004) as follows:
In Senator v. California Department of Corrections, No. CIV 99-5806 (C.D. Cal. March 3, 2000), the court determined that plaintiff's claims were frivolous and dismissed the case.
In Senator v. California Department of Corrections, No. CIV 99-11417 (C.D. Cal. Dec. 1, 1999), the court denied plaintiff's request to proceed in forma pauperis and noted that plaintiff's claims were "legally and/or factually patently frivolous[.]"
In Senator v. Orange County, No. CIV 99-11309 (C.D. Cal. Dec. 1, 1999), the court denied plaintiff's request to proceed in forma pauperis and noted that the action was "legally and/or factually patently frivolous" because the prosecutor had immunity and the action was barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Case No. CIV S-03-1701 LKK KJM P (E.D. Cal.), Doc. No. 23 at 3.*fn1 Based upon those prior strikes, plaintiff's complaint in in Senator v. Alameida was dismissed. Id., Doc. No. 30.
There is an exception to the three-strike bar of § 1915(g) which allows a prisoner to proceed with a civil action despite three prior qualifying dismissals where the prisoner is under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007). However, the imminent danger exception applies only "if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews, 493 F.3d at 1055 (emphasis added).
In the complaint filed in this action, plaintiff alleges that he has been subjected to "health care neglect and intentional withholding of services . . . . [and that] due to the acts and omissions of defendants, plaintiff is undergoing regular actual serious physical injury regarding orthopedics (spinal swelling and buckling; knees; right hip) and neurology (P.T.S.D. causally [sic] related seizure/tick disorder with nausea and light-headedness)." (Doc. No. 1 at 14.) Plaintiff has attached to his complaint approximately 150 pages of exhibits. The pertinent medical records included in these voluminous exhibits are three progress notes from plaintiff's December 14, 2010, January 3, 2011 and January 20, 2011 medical appointments. (Doc. No. 1-1 at 53-55.) Those records reflect plaintiff's complaints of suffering from a seizure disorder as well as back, knee and neck pain. However, the records also indicate that plaintiff was not in "acute distress" and that he is alert and oriented. (Doc. 1-1 at 53-55.) Moreover, on November 19, 2010, plaintiff was removed from the Mental Health Services Delivery System (MHSDS) because it was determined by prison officials that the medical necessity no longer existed for such a placement. (Doc. 1-2 at 62.) The court finds that plaintiff has failed in his complaint to make a plausible allegation that he faces an imminent danger of serious physical injury at this time.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's August 4, 2011 application to proceed in forma pauperis (Doc. No. 3) is denied pursuant to 28 U.S.C. § 1915(g); and
2. Within twenty-one days from the service of this order, plaintiff shall pay the full statutory filing fee of $350.00; plaintiff's failure to pay the filing fee will result in ...