Opinion
24-CV-6653 (LTS)
09-11-2024
MARCUS BRENT FIELDS, Plaintiff, v. PFIZER CEO ALBERT BOURIA, ET AL., Defendants.
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g)
LAURA TAYLOR SWAIN CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently incarcerated at Kern Valley State Prison in Delano, California, brings this action pro se. Plaintiff did not pay the filing fees to bring this action, and the Court understands that Plaintiff seeks leave to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). Plaintiff is barred, however, from filing any new action IFP while he is a prisoner. See Fields v. Macomber, No. 23-CV-01575, 2023 WL 7926803, at *2 (S.D. Cal. Nov. 16, 2023).
See Fields v. Newsom, No. 22-CV-00044 (S.D. Cal. May 16, 2022) (dismissing amended complaint for failure to state a claim and as frivolous); Fields v. Newsom, No. 22-55519 (dismissing appeal as frivolous) (9th Cir. Nov. 17, 2022); Fields v. Bouria, No. 22-CV-01656 (S.D. Cal. Nov. 18, 2022) (dismissing complaint for failure to state a claim and as frivolous), No. 22-56171 (dismissing appeal as frivolous) (9th Cir. May 18, 2023).
That order relied on the “three-strikes” provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), which provides that:
In no event shall a prisoner bring a civil action [IFP] 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.
Although Plaintiff has filed this new action seeking IFP status, his complaint does not show that he is in imminent danger of serious physical injury.Instead, Plaintiff alleges that in March 2021, he received a “harmful Pfizer Covid 19 vaccine shot.” (ECF 1 ¶ V.) Plaintiff is therefore barred from filing this action IFP.
An imminent danger is one “existing at the time the complaint is filed.” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). A danger “that has dissipated by the time a complaint is filed” is not sufficient. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009).
CONCLUSION
The Court denies Plaintiff's request to proceed IFP, and the complaint is dismissed without prejudice under the PLRA's “three-strikes” rule. See 28 U.S.C. § 1915(g).Plaintiff remains barred from filing any future action IFP while he is in custody, unless he is under imminent threat of serious physical injury. Id.
Plaintiff may commence a new action by paying the filing fee. If Plaintiff does so, that complaint will be reviewed under 28 U.S.C. § 1915A, which requires the Court to dismiss any civil rights complaint from a prisoner if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing fee is paid) without first obtaining leave from the Court. See In re Martin-Trigona, 9 F.3d 226, 227-30 (2d Cir. 1993) (discussing sanctions courts may impose on vexatious litigants, including “leave of court” requirement).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment.
SO ORDERED.