Opinion
1:15-cv-01099-AWI-GSA-PC
08-03-2015
RICHARD J. DUPREE, JR., Plaintiff, v. CDC, et al., Defendants.
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE IN FULL (Docs. 1, 2) ORDER FOR CLERK TO CLOSE CASE
I. BACKGROUND
Plaintiff Richard J. Dupree, Jr. is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Dupree filed the Complaint commencing this action on July 2, 2015, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, at the Sacramento Division of the United States District Court for the Eastern District of California. Docs. 1, 2. On July 16, 2015, the case was transferred to the Fresno Division of the Eastern District of California. Doc. 4.
II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
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."
III. ANALYSIS
A review of the actions filed by Dupree reveals that he is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Dupree was, at the time the Complaint was filed, under imminent danger of serious physical injury. The Court has found evidence on the Court record of five 1915(g) "strikes" against Dupree, which were all entered before this action was brought by Dupree on July 2, 2015. The first is case 2:11-cv-00309-EFB-P (Dupree v. Santiago, et al.) (EDCA), which was dismissed on February 22, 2011, for failure to state a claim. The second is case 2:11-cv-00263-DAD-P (Dupree v. United States Courts of the Eastern District of California) (EDCA), which was dismissed on March 24, 2011, as frivolous. The third is case 2:11-cv-01700-WBS-KJN-P (Dupree v. United States Copyright Office) (EDCA), which was dismissed on July 28, 2011, for failure to state a claim. The fourth is case 1:11-cv-00565-OWW-DLB (Dupree v. Jim Scott) (EDCA), which was dismissed on July 12, 2011, for failure to state a claim. The fifth is case 1:11-cv-01233-SMS-PC (Dupree v. Misty Mills) (EDCA), which was dismissed on August 10, 2011, for failure to state a claim.
The court has examined the orders dismissing the five cases and finds that they constitute "strikes" within the meaning of Section 1915(g).
The Court has reviewed Dupree's present Complaint and finds that Dupree does not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Therefore, Dupree may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed. Accordingly, Dupree'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.
The Complaint is devoid of any showing that Dupree was under imminent danger of serious physical injury at the time he filed the Complaint. Dupree alleges in the Complaint that he suffered mental distress because Sergeant Aranda placed discriminatory placards on his cell door signaling that Dupree is "IEX" (Dupree alleges that he has been diagnosed as an exhibitionist, which is a mental disability). Dupree also alleges that during a cell search, Officer Arroyo confiscated his legal materials. The court expresses no opinion on the merits of Dupree's claims. --------
IV. CONCLUSION
Based on the foregoing, it is HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(g), Dupree's application to proceed in forma pauperis in this action is DENIED;IT IS SO ORDERED. Dated: August 3, 2015
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.
/s/_________
SENIOR DISTRICT JUDGE