United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. I. Three
Strikes Analysis Plaintiff seeks leave to proceed in
forma pauperis under 28 U.S.C. § 1915(a). ECF No. 2. 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 only when, after
careful evaluation of the order dismissing an action, and
other relevant information, the district court determines
that the action was dismissed because it was frivolous,
malicious or failed to state a claim.” Andrews v.
King, 398 F.3d 1113, 1121 (9th Cir. 2005). Dismissal
also counts as a strike under § 1915(g) “when (1)
a district court dismisses a complaint on the ground that it
fails to state a claim, (2) the court grants leave to amend,
and (3) the plaintiff then fails to file an amended
complaint” regardless of whether the case was dismissed
with or without prejudice. Harris v. Mangum, 863
F.3d 1133, 1142-43 (9th Cir. 2017).
of other cases filed by plaintiff in this court has led to
the identification of at least four cases brought by
plaintiff that qualify as strikes. The court takes judicial
notice of the following lawsuits filed by
1. Harrell v. Solano County Jail, E.D. Cal. No.
2:14-cv-1592 AC (complaint dismissed with leave to amend for
failure to state a claim, case dismissed on April 27, 2017,
for failure to file an amended complaint);
2. Harrell v. State of California, E.D. Cal. No.
2:15-cv-0470 KJM EFB (case dismissed for failure to state a
claim on September 13, 2016);
3. Harrell v. California Forensic Medical Group Inc,
E.D. Cal. No. 2:15-cv-0579 KJM DB (case dismissed for failure
to state a claim on May 14, 2018);
4. Harrell v. Target, E.D. Cal. No. 2:15-cv-0634 CKD
(case dismissed for failure to state a claim on April 12,
the preceding cases were dismissed well in advance of the
September 13, 2019 filing of the instant action and 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, 312-14 (3rd Cir. 2001);
Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th
Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998); Banos v. O’Guin, 144 F.3d
883, 885 (5th Cir. 1998).
complaint alleges that plaintiff was subject to various
violations of his rights under the constitution and state law
between August and November 2018, while in the Solano County
Jail. ECF No. 1 at 7-13. However, the complaint was not filed
until September 13, 2019, when plaintiff was housed at Folsom
State Prison. Accordingly, these allegations do not
demonstrate an imminent risk of serious physical injury at
the time of filing and the undersigned will therefore
recommend that plaintiff be required to pay the filing fee in
full or have the complaint dismissed.
Plain Language Summary of this Order for a Pro Se
have at least three strikes under § 1915(g) and cannot
be granted in forma pauperis status unless you show the court
that you were in imminent danger of serious physical injury
at the time you filed the complaint. Because your claims are
based on things that happened about a year before you filed
your complaint, you cannot show that you were in imminent
danger of serious physical injury at the time you filed the
IT IS HEREBY ORDERED that the Clerk of the Court shall
randomly assign a United ...