United States District Court, E.D. California
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has moved to proceed in
forma pauperis. Plaintiff consented to the jurisdiction of a
magistrate judge. (ECF No. 4.)
reasons set forth below, this court finds plaintiff fails to
meet the standards to proceed in forma pauperis and must pay
the filing fee if he wishes to proceed with this action.
FORMA PAUPERIS STATUTE
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court 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).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
If a prisoner has “three strikes” under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception,
the complaint of a “three-strikes” prisoner must
plausibly allege that the prisoner was faced with imminent
danger of serious physical injury at the time his complaint
was filed. See Williams v. Paramo, 775 F.3d 1182,
1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
PLAINTIFF ACCRUED THREE STRIKES?
judges in this court have found that plaintiff may not
proceed with a civil rights action in forma pauperis because
he has suffered at least three strikes. See, e.g.,
Hendon v. Davey, No. 2:17-cv-0169 KJN P (E.D. Cal.)
(Order filed Mar. 23, 2017); Hendon v. Carillo, No.
2:17-cv-0170 CKD P (E.D. Cal.) (Order filed Feb. 28, 2017);
Hendon v. Kulka, No. 2:14-cv-2581 AC P (E.D. Cal.)
(Order filed Aug. 3, 2015); Hendon v. Baroya, No.
1:09-cv-911 MJS (PC) (E.D. Cal.) (Order filed July 29, 2010).
court also finds plaintiff has suffered three strikes under
§ 1915(g). Each of the following cases was dismissed for
failure to state a claim prior to plaintiff's filing of
(1) Hendon v. Rogel, 2:05-cv-1063 DFL PAN (E.D.
Cal.) (Order filed Aug. 28, 2006);
(2) Hendon v. Witcher, 1:05-cv-1246 AWI DLB (E.D.
Cal.) (Order filed ...