United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff
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 Nos. 2, 7. 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). “[W]hen
a district court disposes of an in forma pauperis complaint
‘on the grounds that [the claim] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,' such a complaint is ‘dismissed' for
purposes of § 1915(g) even if the district court styles
such dismissal as denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008) (second alteration in original). 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).
Inspection
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
plaintiff:[1]
1. George v. Chapa, E.D. Cal. No. 1:12-cv-1788 GSA
(complaint dismissed with leave to amend for failure to state
a claim, case dismissed on March 31, 2014, for failure to
file an amended complaint);
2. George v. Stebbino, E.D. Cal. No. 1:13-cv-0052
BAM (complaint dismissed with leave to amend for failure to
state a claim, case dismissed on March 25, 2014, for failure
to file an amended complaint);
3. George v. Lopez, E.D. Cal. No. 1:13-cv-0055 DLB
(complaint dismissed with leave to amend for failure to state
a claim, case dismissed on June 18, 2014, for failure to file
an amended complaint);
4. George v. Stebbino, E.D. Cal. No. 1:16-cv-1397
SAB (complaint dismissed without leave to amend for failure
to state a claim on May 11, 2017).
All of
the preceding cases were dismissed well in advance of the
November 26, 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).
The
complaint alleges that on June 12, 2019, defendants denied
him breakfast and lunch. ECF No. 1 at 3-4. These allegations
do not demonstrate an imminent risk of serious physical
injury at the time of filing, and the undersigned will
therefore recommend that ...