Opinion
1:13-cv-00737-GSA-PC
06-04-2013
TONY BLACKMAN, Plaintiff, v. J. D. LOZANO, et al., Defendants.
ORDER DENYING PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA
PAUPERIS, AND DISMISSING ACTION
UNDER 28 U.S.C. § 1915(g), WITHOUT
PREJUDICE TO REFILING WITH
SUBMISSION OF $400.00 FILING FEE
IN FULL
(Doc. 2.)
ORDER FOR CLERK TO CLOSE CASE
I. BACKGROUND
Tony Blackman ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 17, 2013, together with an application to proceed in forma pauperis. (Docs. 1, 2.) On May 31, 2013, Plaintiff consented to the jurisdiction of a Magistrate Judge under 28 U.S.C. § 636(c), and no other parties have made an appearance in this case. (Doc. 4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
II. "THREE STRIKES" PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . 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."
Discussion
The Court takes judicial notice of the following cases: (1) 1:99-cv-05822-REC-HGB PC Blackman v. Hartwell (E.D. Cal.) (dismissed 03/12/2001 for failure to state a claim); (2) 3:05-cv-05390-SI Blackman v. Medina (N.D. Cal.) (dismissed 03/13/2006 for failure to state a claim); (3) 3:06-cv-06398-SI Blackman v. Variz (N.D. Cal.) (dismissed 12/18/2006 for failure to state a claim); and (4) 1:04-cv-06389-AWI-NEW (DLB) Blackman v. Taxdahl (E.D. Cal.) (dismissed 05/18/2007 for failure to state a claim). A review of these cases, filed by Plaintiff, reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under imminent danger of serious physical injury.
The Court has reviewed Plaintiff's Complaint in this action and finds that Plaintiff does not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In the Complaint, Plaintiff alleges that defendants improperly rejected his inmate appeals; refused to provide him with a signed application to proceed in forma pauperis and copy of his trust account statement; threatened to place him in a double cell, confiscate his personal property, and transfer him; discriminated against him; violated his rights to due process; and falsely imprisoned him. (Doc. 1.) None of these allegations support the existence of an imminent danger of serious physical injury. Therefore, Plaintiff fails to allege the imminent danger of serious physical injury necessary to bypass § 1915(g)'s restriction on his filing suit without prepayment of the filing fee.
The Court expresses no opinion on the merits of Plaintiff's claims.
Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Plaintiff's application to proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.
IV. CONCLUSION
Based on the foregoing, it is HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's application to proceed in forma pauperis in this action is denied;IT IS SO ORDERED.
2. This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and
3. The Clerk is directed to CLOSE this case.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE