United States District Court, Eastern District of California
ERIC C.R. K'NAPP, Plaintiff,
JEFFREY BEARD, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO PAY FILING FEE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE.
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 28 U.S.C. § 1983.
On February 12, 2014, the undersigned issued findings and recommendations to revoke Plaintiffs in forma pauperis status and to require that Plaintiff pay the $400 filing fee in full within twenty-one days. The District Judge assigned to the case adopted the findings and recommendation in full on March 17, 2014.
Plaintiff appealed. His motion to proceed in forma pauperis on appeal was denied. (ECF No. 16.) His appeal was dismissed on November 26, 2014 for failure to pay filing and docketing fees. (ECF No. 17.)
On December 3, 2014, the Court ordered Plaintiff to pay the filing fee in full or show cause why the action should not be dismissed. (ECF No. 18.) Plaintiff responded to the order to show cause by arguing that he should not be required to pay the filing fee, requesting leave to amend his complaint, and arguing his action should not be dismissed. (ECF No. 19.)
II. LEGAL STANDARD
28 U.S.C. § 1915 permits a federal court to authorize the commencement and prosecution of an action without prepayment of fees by an individual who submits an affidavit demonstrating that he or she is unable to pay the fees. However,
[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 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).
Plaintiff first argues that he should not be required to pay the applicable filing fee because 28 U.S.C. § 1915(g) unconstitutionally abridges his rights to freedom of speech, to petition the government for a redress of grievances, and to access the courts. This argument is without merit. The United States Court of Appeals for the Ninth Circuit has concluded that § 1915(g) passes constitutional muster. Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).
Plaintiff next argues that he had not incurred three "strikes" under 28 U.S.C. § 1915(g) at the time of filing his complaint. This contention was rejected in the order adopting the findings and recommendations. (ECF No. 9.) Moreover, the Ninth Circuit has confirmed that three of the cases relied on in the findings and recommendations, Knapp v. Knowles, no. 2:03-cv-00394 (E.D. Cal. 2004), Knapp v. Knowles, No. 2:06-cv- 00453 (E.D. Cal. 2007), and Knapp v. Harrison, No. 06-cv-07702 (CD. Cal. 2008), constitute "strikes." See Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013). Each of these strikes was incurred prior to the filing of this action. Plaintiffs argument is without merit.
Plaintiff also argues that he should be allowed to proceed in forma pauperis because he was in imminent danger of serious physical injury when he filed his complaint. Again, this contention was rejected in the order adopting the findings and recommendations (ECF No. 9.) The facts relied on by Plaintiff do not demonstrate that he faced imminent danger of serious physical injury at the time he filed his complaint. Accordingly, ...