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Hendon v. California Medical Facility

United States District Court, E.D. California

July 22, 2017

CARLOS HENDON, Plaintiff,
v.
CALIFORNIA MEDICAL FACILITY, et al., Defendant.

          ORDER

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.)

         For the 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.

         IN FORMA PAUPERIS STATUTE

         The 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).

         This “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.

         HAS PLAINTIFF ACCRUED THREE STRIKES?

         Numerous 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).

         This court also finds plaintiff has suffered three strikes under § 1915(g). Each of the following cases[1] was dismissed for failure to state a claim prior to plaintiff's filing of this action:

(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 ...

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