The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action under 42 U.S.C. § 1983. Defendants have now moved to revoke plaintiff's in forma pauperis status. ECF No. 32. Plaintiff opposes the motion, and also moves for sanctions against defendants' counsel. ECF No. 34. For the reasons outlined below, the undersigned recommends that the court grant defendants motion to revoke plaintiff's in forma pauperis status and deny plaintiff's motion for sanctions.
Plaintiff filed this action on January 30, 2012, together with an application to proceed in forma pauperis. ECF Nos. 1, 2. By order filed April 23, 2012, the court granted plaintiff's motion to proceed in forma pauperis. Order, ECF No. 7. The court additionally screened plaintiff's complaint, and found that three of plaintiff's twelve counts stated cognizable claims; the rest were dismissed with leave to amend. Id. at 15. Plaintiff subsequently filed an amended complaint. ECF No. 14. The court dismissed some of the counts (ECF Nos. 16, 24), and ordered the amended complaint served. ECF No. 15. In response to the complaint, defendants now move to revoke plaintiff's in forma pauperis status. ECF No. 32.
MOTION TO REVOKE IN FORMA PAUPERIS STATUS
Defendants argue that plaintiff's in forma pauperis status should be revoked because, before he filed the instant lawsuit, he had previously filed at least four actions which were dismissed either as frivolous or for failure to state a claim:
(1) Chappell v. Gomez, Case No. 94-cv-1520 (N.D. Cal), dismissed on July 14, 1994, after the screening judge found that the claims made in the complaint were either duplicative, and therefore malicious, or failed to state a claim;
(2) Chappell v. Fried, Case No. 96-cv-0235 (N.D. Cal.), dismissed on February 14, 1996, because "from the face of plaintiff's complaint . . . this court has no personal jurisdiction over the named defendant and venue is improper in this district . . .";
(3) Chappell v. Neubart, Case No. 1:06-cv-1378 (E.D. Cal.), dismissed on July 13, 2010 for failure to state a claim; and
(4) Chappell v. Reed, Case No. 2:02-cv-1706 (E.D. Cal.), dismissed on January 22, 2003, for failure to state a claim.
Defendants further argue that plaintiff does not qualify for an imminent danger exception to the statute, because, among other things, he had been transferred to another prison at the time he filed the complaint, and had been placed in segregated custody.
Plaintiff concedes that Neubarth and Reed are strikes, but contends that both Fried and Gomez have been found in two prior cases not to qualify as strikes. The two prior cases plaintiff identifies are: (1) Chappell v. Pliler, 2:04-cv-1183 LKK DAD (Findings and Recommendations entered December 20, 2006); and (2) Chappell v. T. Perez, 2:09-cv-1465
GEB KJM (Magistrate Judge Order dated April 25, 2011 denying defendants' vexatious litigant motion).
Plaintiff argues that Fried was dismissed because it was filed in the wrong court, and that such a dismissal on procedural grounds cannot be used as a strike. As to Gomez, plaintiff contends that the case was not dismissed or for failure to state a claim, because the dismissal order reads "that plaintiff could bring his claim again if he could prove that CDC officials were placing his life in danger by falsely accusing him of being a gang member." ECF No. 34 at 6. Plaintiff claims that he did so prove in an administrative grievance, obviating the need for a subsequent civil action, and that prison officials' response to his grievance, by deleting a statement about gang membership from a disciplinary report, is proof that he had a factual and legal basis for filing the Gomez complaint. Id.
Finally, plaintiff disputes defendants' contention that he was not in imminent danger at the time he filed the complaint. Plaintiff appears to argue that he will be beaten, stabbed, or killed because he has been convicted of rape, because the CDCR has placed a "R" suffix on his paperwork, and because the Black Gorilla Family (BGF), a prison gang, would require plaintiff to show his "paperwork" (meaning his commitment offense, and most recent CDC-114-D and CDC-128-G), upon being placed in a building, section, or cell of any prison. See ECF No. 34 at 8-13. Plaintiff appears to argue that his transfer to another prison is accordingly not relevant to any determination that he is in imminent danger.
28 U.S.C. § 1915 generally permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However, ...