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Jay v. Trinity Food Services

United States District Court, E.D. California

November 26, 2014

JOAQUIN JAY II, Plaintiff,
v.
TRINITY FOOD SERVICES, et al., Defendants.

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE IN FULL (Docs. 1, 2.)

ANTHONY W. ISHII, Sr., District Judge.

I. BACKGROUND

Joaquin Jay II ("Plaintiff") is a Fresno County Jail inmate proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 20, 2014, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Docs. 1, 2.)

II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

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."

III. ANALYSIS

A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under imminent danger of serious physical injury. The court has found evidence on the court record of more than three 1915(g) "strikes" against Plaintiff, which were all entered before this action was brought by Plaintiff on November 20, 2014.[1] The first is case 1:10-cv-00213-GSA-PC (Jay v. Fresno County Jail) (EDCA), which was dismissed on December 15, 2010, for failure to state a claim. The second is case 1:10-cv-00343-GSA-PC (Jay v. Vang, et al.) (EDCA), which was dismissed on December 15, 2010, for failure to state a claim. The third is case 1:10-cv-00072-SKO-PC (Jay v. Fresno County Jail, et al.) (EDCA), which was dismissed on May 6, 2011, for failure to state a claim. The fourth is case 1:10-cv-00947-SMS-PC (Jay v. Lara, et al.) (EDCA), which was dismissed on May 10, 2011, for failure to state a claim.

The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).[2] Therefore, Plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Accordingly, Plaintiff's application to proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.

IV. CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's application to proceed in forma pauperis in this action is DENIED;
2. This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and
3. The Clerk is directed to CLOSE this case.

IT IS SO ORDERED.


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