United States District Court, E.D. California
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 ...