Weaver v. Sacramento Police Department

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has neither paid the filing fee for this action nor requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

         The Prison Litigation Reform Act of 1995 (PLRA) 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,

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.

28 U.S.C. § 1915(g).

         The plain language of the statute makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). Section 1915(g) should be used to deny a prisoner’s in forma pauperis status only upon a determination that each action reviewed (as a potential strike) is carefully evaluated to determine that it was dismissed as frivolous, malicious, or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted, ’ such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

         The court takes judicial notice ^[1]of the national pro se “three strikes” database, ^[2] which indicates that plaintiff has brought more than three cases that qualify as strikes and has a three strikes order in the United States District Court for the Eastern District of California. Upon inspection of the cases identified in the “three strikes” database and other cases filed by plaintiff in the Eastern District of California, this court has identified well over three cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the following lawsuits filed by plaintiff in the United States District Court for the Eastern District of California ^[3]:

• Weaver v. California Correctional Institution, 1:06-cv-00671-OWW-SMS (dismissed for failure to state a claim and as frivolous on July 15, 2006)

• Weaver v. California Correctional Institution, 1:06-cv-00775-OWW-LJO (dismissed for failure to state a claim and as frivolous on July 15, 2006)

• Weaver v. California Correctional Institution, 1:06-cv-00429-AWI-SMS (dismissed for failure to state a claim and as frivolous on September 12, 2006)

• Weaver v. Tehachapi Confinement SHU, 1:06-cv-00341-AWI-LJO (dismissed for failure to state a claim on September 28, 2006)

• Weaver v. California Correctional Institution, 1:06-cv-01208-OWW-LJO (dismissed as frivolous and malicious on October 3, 2006)

• Weaver v. California Correctional Institution, 1:06-cv-01210-OWW-LJO (dismissed as frivolous and ...