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Taylor v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

September 5, 2014

KIRELL TAYLOR, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS, AND REQUIRING PLAINTIFF TO PAY FILING FEE IN FULL WITHIN THIRTY DAYS [ECF Nos. 7, 8]

ANTHONY W. ISHII, Chief Senior District Judge.

Plaintiff Kirell Taylor ("Plaintiff") is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 26, 2013. On December 12, 2013, the Court granted Plaintiff's motion for leave to proceed in forma pauperis. However, following a review of the cases filed by Plaintiff, it is now apparent that Plaintiff is subject to 28 U.S.C. § 1915(g). For the reasons set forth below, Plaintiff is not entitled to proceed in forma pauperis in this action, his in forma pauperis status shall be revoked, and he shall be required to submit the $400.00 filing fee in full.

28 U.S.C. § 1915 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." Plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted. The Court takes judicial notice[1] of the following cases: (1) Bettis v. Paulson, [2] CV-09-1544-UA-CT (C.D. Cal.) (Plaintiff's action was dismissed as frivolous on April 13, 2009); (2) Bettis v. Blackstone, 1:08-cv-01561-AWI-GSA (E.D. Cal.) (Plaintiff's action was dismissed for failure to state a claim on September 11, 2009); and (3) Bettis v. Tillie-Moore, CV 09-788-CT (C.D. Cal.) (Plaintiff's action was dismissed as frivolous on February 11, 2009). Because Plaintiff has accumulated "three strikes" against him, he may only proceed in forma pauperis under § 1915 if he was under imminent danger of serious physical injury at the time he brought his action. See 28 U.S.C. § 1915(g); Andrews v. Cervantes , 493 F.3d 1047, 1053 (9th Cir. 2007).

The Court has reviewed Plaintiff's complaint and finds that Plaintiff does not meet the imminent danger exception. The complaint concerns allegations of misappropriation of trade secrets and copyrights, misappropriation of art or invention, retaliation by failing to provide Plaintiff with photocopying services, deliberate indifference concerning an incident which took place in 2011, retaliation by issuing a false rules violation report, interference and destruction of mail, denial of access to courts, and retaliation by destruction of property. The Court finds that Plaintiff's complaint does not set forth any plausible allegation that at the time suit was filed, Plaintiff was facing imminent danger of serious physical injury, and he is not eligible to proceed in forma pauperis in this action. Therefore, Plaintiff's in forma pauperis status shall be vacated, and Plaintiff will be directed to submit the filing fee in order to proceed with this action.

ORDER

Based on the foregoing, it is HEREBY ORDERED that:

1. The order granting Plaintiff leave to proceed in forma pauperis is VACATED;

2. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is ineligible to proceed in forma pauperis in this action; and

3. Plaintiff is ORDERED to submit the $400.00 filing fee in full within thirty days or dismissal of this action will occur.

IT IS SO ORDERED.


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