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Magee v. Reardon

United States District Court, N.D. California

May 30, 2018

RUCHELL CINQUE MAGEE, Plaintiff,
v.
TIMOTHY A. REARDON, Defendant.

          ORDER OF DISMISSAL DKT. 2, 8, 9, 11, 12, AND 16

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Ruchell Cinque Magee is barred from bringing this action[1] in forma pauperis because he has filed three or more federal actions that were dismissed as frivolous, malicious, or on grounds that they failed to state a claim for relief. Accordingly, this federal civil rights action is DISMISSED without prejudice to Magee bringing his claims in a new paid complaint.

         BACKGROUND

         Magee, a state prisoner and frequent litigant in federal court, filed this federal civil rights action under 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. He was ordered by the Hon. Lucy H. Koh, who was then presiding over this matter, to show cause why the action should not be dismissed under 28 U.S.C. § 1915(g), which provides that a prisoner may not bring a civil action IFP “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.” (Dkt. No. 10.)

         The order identified seven prior federal court actions (“strikes”) that appeared to count under section 1915(g) and allowed plaintiff an opportunity to respond, as required by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005). The order also informed Magee he could avoid dismissal by paying the filing fee by the deadline. The strikes identified were:

(1) Magee v. Scott, No. 05-CV-348 AWI LJO (E.D. Cal. March 6, 2016) (order adopting report and recommendation dismissing case for failing to file amended complaint and failing to state a cognizable claim);
(2) Magee v. Bravo, No. 03-CV-6764 LJO WMW (E.D. Cal. July 23, 2007) (order adopting report and recommendation dismissing case for failing to state a cognizable claim);
(3) Magee v. Ortega, No. 00-CV-1512 GEB GGH (E.D. Cal. April 22, 2002) (order adopting report and recommendation dismissing case for failing to file amended complaint);
(4) Magee v. Meyer, No. 95-CV-03855 DLJ (PR) (N.D. Cal. March 27, 1996) (dismissed as malicious);
(5) Magee v. Reardon, No. 94-CV-3815 DLJ (PR) (N.D. Cal. March 17, 1995) (dismissed as malicious);[2]
(6) Magee v. Foreman Federal Grand Jury, No. 94-CV-4298 DLJ (PR) (N.D. Cal. March 16, 1995) (dismissed as malicious); and
(7) Magee v. Romines, No. 93-CV-3638 DLJ (PR) (N.D. Cal. June 9, 1994) (dismissed for failing to state a ...

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