Opinion
No. C 04-1887 WHA (PR).
May 14, 2004
DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS AND ORDER OF DISMISSAL (Doc 2)
This is a pro se civil rights complaint under 42 U.S.C. § 1983 filed by a state prisoner. She has applied for leave to proceed in forma pauperis.
Plaintiff has had at least three cases or appeals previously dismissed as frivolous, malicious, or for failure to state a claim. These are: Claiborne v. Randolf, C 02-3375 WHA (PR) (N.D. Cal. Apr. 17, 2003); Claiborne v. Culver City Police Dept., CV 00-01987-UA (C.D. Cal. Mar. 2, 2000) (dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); Claiborne v. California Department of Parks Recreation, 2:00-cv-04044-UA (C.D. Cal. Apr. 25, 2000) (dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); Claiborne v. State of California, 2:00-cv-04315-R-SH (C.D. Cal. Sept. 11, 2000) (dismissal pursuant to Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994)); Claiborne v. Johnson, 2:00-cv-09455-UA-SH (C.D. Cal. Nov. 8, 2000) (dismissal for failure to exhaust and failure to state a claim);Claiborne v. Roe, 2:00-cv-10272-UA-SH (C.D. Cal. Jan. 30, 2001) (dismissal for failure to state a claim); Claiborne v. Cervantes, 2:00-cv-11226-UA-SH (C.D. Cal. Oct. 30, 2000) (dismissal because only immune defendants named); Claiborne v. Irwin, 2:01-cv-00509-UA-SH, (C.D. Cal. Jan. 30, 2001) (dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); Claiborne v. Director of Corrections, 2:02-cv-04037-UA-SH (C.D. Cal. May 31, 2002) (dismissal for failure to state claim).
The Prison Litigation Reform Act of 1995 ("PLRA") became effective on April 26, 1996. Among other things, it provides that a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis "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." 28 U.S.C. § 1915(g). "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the [PLRA's] effective date." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir 1997).
Because plaintiff has had three or more prior prisoner actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief could be granted, and does not allege she is in imminent danger of serious physical injury, this case will be dismissed. This dismissal will not bar plaintiff from bringing the claims in a paid complaint, of course, because 28 U.S.C. § 1915(g) only prevents "three strikes" litigants from bringing cases in forma pauperis.
CONCLUSION
For the reasons set out above, leave to proceed in forma pauperis (doc 2) is DENIED and this action is DISMISSED. The clerk shall close the file.
IT IS SO ORDERED.