United States District Court, E.D. California
MARCUS L. LINTHECOME, Plaintiff,
ALFARO, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN
FORMA PAUPERIS AND ORDERING PLAINTIFF TO PAY THE FILING FEE
(DOC. 10) TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Marcus L. Linthecome, filed a this civil rights action
pursuant to 42 U.S.C. § 1983 in the United States
District Court in the Northern District of California on
April 12, 2017. On May 24, 2017, Plaintiff filed an
application to proceed in forma pauperis under 28
U.S.C. § 1915 (Doc. 10), as well as his consent to
magistrate judge jurisdiction (Doc. 11). On June 30, 2017,
the case was transferred to this Court since the Complaint
describes events that occurred at North Kern State Prison
(“NKSP”) in Kern County, where the named
defendants are located. (Doc. 14.) Since Plaintiff has three
strikes under § 1915 and his allegations fail to show
imminent danger of serious physical injury at the time he
filed the suit, his application to proceed in forma
pauperis is DENIED.
THREE-STRIKES PRIVION OF 28 U.S.C. §
U.S.C. § 1915 governs proceedings in forma
pauperis. “In 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.” 28 U.S.C. §
Court may take judicial notice of court records. United
States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004).
Here, judicial notice is taken of three of Plaintiff's
prior actions: Linthecome v. Deputy Lillo,
2:11-cv-00100-UA-AJW, which was dismissed on January 21,
2011, for failure to state a claim; Linthecome v.
Unknown, 2:11-cv-04184-UA-AJW, which was dismissed on
June 28, 2011, for failure to state a claim; and
Linthecome v. CDCR Parole Agents,,
2:11-cv-05708-UA-AJW, which was dismissed on July 26, 2011,
as frivolous, malicious, and for failure to state a claim.
Plaintiff is thus subject to 28 U.S.C. § 1915(g) and is
precluded from proceeding in forma pauperis unless
he demonstrates that at the time of filing this action, he
was under imminent danger of serious physical injury.
Court has reviewed Plaintiff's Complaint and finds that
he does not meet the imminent danger exception. See
Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
2007). Plaintiff's allegations are based on allegations
that Defendant Castaneda increased Plaintiff's
“Static-99 score” which has caused him to be
targeted by law enforcement and subsequently falsely arrested
and incarcerated four times. (Doc. 1, pp. 4-7.) Plaintiff
seeks monetary damages in addition to correction of his
Static-99 score, release from custody, and relief from
further parole. (Id., p. 7.) None of Plaintiff's
allegations demonstrate that he was under an imminent danger
at the time he filed this action. In fact, although he
alleges that the tampering of his Static-99 score occurred at
NKSP, Plaintiff was at the West Valley Detention Center in
Rancho Cucamonga, California when he filed this action.
(See id., p. 1.) Thus, even if these circumstances
amounted to imminent danger, Plaintiff was not subjected to
it when he filed this action since he was no longer held at
NKSP. Andrews, at 1053.
on the foregoing, the Court finds that Plaintiff fails to
allege an imminent danger of serious physical injury
necessary to bypass the restriction of § 1915(g) on
filing suit without prepayment of the filing fee since he
previously received three strikes. Plaintiff may not proceed
in forma pauperis and must submit the appropriate
filing fee in order to proceed with this action.
Court HEREBY ORDERS that:
1. Plaintiff's motion to proceed in forma
pauperis, filed on May 24, 2017, (Doc. 10), is DENIED;
2. Within twenty-one (21) days of the date of service of this
order, plaintiff is required to pay in full the $400.00
filing fee for this action;
3. Plaintiff's failure to comply with this order shall
result in the dismissal of this action ...