Opinion
No. 2:11-cv-0291 LKK KJN P
06-04-2014
SHAI ALKEBU-LAN, Plaintiff, v. K. DICKINSON, Warden, et al., Defendants.
ORDER and
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff challenges the district judge's order revoking Plaintiff's in forma pauperis status. By order filed March 31, 2014, the district judge granted defendants' motion to revoke Plaintiff's in forma pauperis status, on the ground that plaintiff is a three-strikes litigant under 28 U.S.C. § 1915(g), who failed to demonstrate that he was "under imminent danger of serious physical injury" when he filed this action. (See ECF No. 53.) The district judge directed plaintiff to pay the full filing fee within thirty days, and informed plaintiff that "[f]ailure to pay the filing fee as required by this order will result in the dismissal of this action." (Id. at 4.)
Also pending is Plaintiff's appeal to the Ninth Circuit Court of Appeals of the undersigned's order denying Plaintiff's second request for appointment of counsel. (See ECF Nos. 54, 55, 59, 60.)
28 U.S.C. § 1915(g) provides:
In 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.
Plaintiff now seeks to "stay" the district judge's March 31, 2014 order to permit plaintiff time to appeal the order, and to "preserve these issues for Supreme Court review" (ECF No. 56); to pay the filing fee in installments "until his appeals upon review is granted" (ECF No. 57); and to be accorded a 60-day extension of time within which to file objections to the order (ECF No. 58).
This motion also seeks additional time to file objections to the undersigned's order denying Plaintiff's request for appointment of counsel. (See n.1, supra.) However, because plaintiff has appealed this matter to the Ninth Circuit Court of Appeals, the undersigned finds this request moot.
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The undersigned finds no precedent for Plaintiff's requests. "'Section 1915(g) . . . preclude[s] a three struck inmate from using the installment payment mechanism of § 1915(b) unless he is in imminent danger of serious physical injury.'" Beeson v. Copsey, 2011 WL 4948218, *2 (D. Idaho 2011) (quoting Hughes v. Correctional Med. Servs., 2008 WL 4099259, *2 (N.D. Ind. 2008)).
The thirty-day deadline established by the district judge for plaintiff to pay the filing fee expired on April 30, 2014. Since then, plaintiff has had an additional month within which to pay the fee. In light of the requirements of 28 U.S.C. § 1915(g), and Plaintiff's failure to comply with the district judge's order, the undersigned will recommend dismissal of this action without prejudice to plaintiff renewing his claims in a new action commenced with full payment of the filing fee.
For these reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to stay the district judge's March 31, 2014 order revoking Plaintiff's in forma pauperis status (ECF No. 56), is denied.
2. Plaintiff's motion to pay the filing fee in installments (ECF No. 57), is denied.
3. Plaintiff's motion for an extension of time within which to file objections to the district judge's March 31, 2014 order (ECF No. 58), is denied.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE