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Logan v. Gamboa

United States District Court, E.D. California

March 31, 2017

JOHN DAVID LOGAN, II, Plaintiff,
v.
D.L. GAMBOA, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 5. Currently before the court are plaintiff's original complaint (ECF No. 1), amended complaints (ECF Nos. 6, 7, 11, 12, 13, 15, 16, 17, 26), motions for appointment of counsel (ECF Nos. 2, 18, 19, 20, 25, 28, 30), request for Priority Legal User status (ECF No. 8), request to issue subpoenas (ECF No. 21), requests for transfer (ECF Nos. 22, 24), request for discovery (ECF No. 27), and request for service forms (ECF No. 29).

         I. Three Strikes Analysis

         Plaintiff has not yet submitted an application to proceed in forma pauperis in this case or paid the required filing fee of $350.00 plus the $50.00 administrative fee. Accordingly, he will be provided the opportunity either to submit the appropriate application in support of a request to proceed in forma pauperis or to submit the required fees totaling $400.00. However, if he submits an application to proceed in forma pauperis, it will not be granted unless he also demonstrates that he meets the imminent danger exception as explained below.

         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 judgement in a civil action or proceeding 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). 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). 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 on 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) (second alteration in original).

         The court takes judicial notice[1] of the national pro se “three strikes” database, [2] which indicates that plaintiff has a three strikes order in the United States District Court for the Central District of California in Logan v. La Duke, Case No. 2:10-cv-07612-UA-MLG. Upon inspection of the order in that case, which deems plaintiff a three strikes litigant, and several other cases filed by plaintiff in the Central District of California, this court has identified eight 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 Central District of California:

1. Logan v. Baker, 2:01-cv-08702-UA-MLG (dismissed as legally and/or factually patently frivolous on October 26, 2001)
2. Logan v. Sheriff Department, 2:05-cv-01900-UA-MLG (dismissed as legally and/or factually patently frivolous on March 25, 2005)
3. Logan v. Blunk, 2:06-cv-03639-UA-MLG (dismissed as legally and/or factually patently frivolous on June 27, 2005)
4. Logan v. Zepeda, 2:07-cv-07314-UA-MLG (dismissed as legally and/or factually patently frivolous on November 30, 2007)
5. Logan v. Zepeda, 2:08-cv-00631-UA-MLG (dismissed as legally and/or factually patently frivolous on April 3, 2008)
6. Logan v. County of Los Angeles, 2:08-cv-01916-UA-MLG (dismissed as legally and/or factually patently frivolous on April 3, 2008)
7. Logan v. Marshal, 2:09-cv-01883-UA-MLG (dismissed as legally and/or factually patently frivolous on March 27, 2009)
8. Logan v. McClain, 2:09-cv-03614-UA-MLG (dismissed as legally and/or factually patently frivolous on June 1, 2009).

         All of the preceding cases were dismissed well in advance of the August 21, 2016 filing of the instant action, and plaintiff did not appeal any of these decisions, so none of the strikes have been overturned. Therefore, this court finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must have alleged facts that demonstrate that he was “under imminent danger of serious physical injury” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of the ‘imminent danger' exception to § 1915(g).”); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding that a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis for the exception under § 1915(g)); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (noting that “an otherwise ineligible ...


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