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Marvellous Amir Warrior Greene v. D. Mcguire

August 10, 2012

MARVELLOUS AMIR WARRIOR GREENE,
PLAINTIFF,
v.
D. MCGUIRE, DEFENDANT.



ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM
ORDER FINDING PLAINTIFF MUST PAY THE FILING FEE PURSUANT TO 28 U.S.C. § 1915(g)
ORDER GRANTING PLAINTIFF THIRTY DAYS TO FILE AN AMENDED COMPLAINT AND PAY THE FILING FEE / (Docs. 1, 9, & 11)

I. PROCEDURAL BACKGROUND

Plaintiff Marvellous Amir Warrior Greene ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 5, 2011. Doc. 1. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On December 20, 2011, the Magistrate Judge filed a Findings and Recommendations that found Plaintiff had three "strikes" pursuant to 28 U.S.C. § 1915(g) and the complaint did not meet Section 1915(g)'s "immanent danger" requirement. The Findings and Recommendations also found the complaint frivolous.

The Magistrate Judge's Findings and Recommendations was served on Plaintiff, which contained notice that any objections to the Findings and Recommendations were to be filed within fifteen (15) days. Doc. 6. On December 28, 2011, Plaintiff filed objections and a first amended complaint. Doc. 9; Doc. 10.

II. DISCUSSION

A. 28 U.S.C. § 1915(g) - Three Strikes

Preliminarily, the court notes that Plaintiff may not proceed with this action without paying the filing fee. The Prison Litigation Reform Act of 1995 ("PLRA") was enacted "to curb frivolous prisoner complaints and appeals." Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to the PLRA, the in forma pauperis statute was amended to include 8 U.S.C. § 1915(g), a non-merits related screening device which precludes prisoners with three or more "strikes", from proceeding in forma pauperis unless they are under imminent danger of serious physical injury. Andrews v. Cervantes, 493 F.3d 1047, 1049-50 (9th Cir. 2007). Section governs proceedings in forma pauperis and provides that:

In 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.

The Magistrate Judge properly found that Plaintiff must pay the filing fee in this action pursuant to Section 1915(g) because the record shows that Plaintiff has, on three or more prior occasions, brought an action that was dismissed for failure to state a claim. The court's review shows Plaintiff has been found three strikes by the Ninth Circuit and has had at least three actions dismissed for failure to state a claim. See, e.g., Greene v. Jones, 09-15414 (9th Cir. May 29, 2009) (Ninth Circuit finding Plaintiff has three strikes); Greene v. California Department of Corrections, et al., No. 2:04-cv-02383 FCD-DAD-PC (E.D. Cal. January 24, 2006) (dismissing for failure to state a claim); Greene v. Reyes, et. al., 2:00-cv-00196 LKK-DAD-PC (E.D. Cal. June 7, 2000) (dismissing for failure to state a claim).

Thus, the first issue in this action is whether Plaintiff has met the imminent danger exception, which requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury, which turns on the conditions he faced at the time he filed suit on December 5, 2011. See Andrews, 493 F.3d at 1053-56. As discussed further below, at best, Plaintiff's amended complaint attempts to state a claim for Defendant's First Amendment denial of Plaintiff's access to the courts. However, Defendant's alleged failure to deliver legal mail does not allege an imminent danger of serious physical injury. Thus, Plaintiff cannot proceed with this action without paying the filing fee. Plaintiff will be given thirty days to pay the filing fee.

B. December 28, 2012 Amended Complaint

Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that "[a] party may amend its pleading once as a matter of course within . . . 21 days after serving it[.]"

Fed.R.Civ.P. 15(a)(1)(A). Rule 15(a)(1)(B) provides that a party's right to amend as a matter of course terminates "21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1)(B). There being no responsive pleading or Rule 12 motion brought, Plaintiff was entitled to file an amended complaint on December 28, 2011.*fn1 An amended complaint supercedes the original complaint. Lacey v. Maricopa County, 649 F.3d 1118, 1137 (9th Cir. 2011); Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). Thus, the court is now ...


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