Opinion
Case No.: 1:16-cv-00516-LJO-SAB (PC)
08-23-2016
EDWIN O. GARCIA, Plaintiff, v. R. LAWRENCE, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 2) ORDER DISMISSING ACTION WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE
Plaintiff Edwin Garcia, a state prisoner proceeding pro se, filed this action pursuant to 28 U.S.C. § 1361, on Apri 13, 2016. That same day, he also filed a motion for leave to proceed in forma pauperis. (ECF No. 2.) Plaintiff has consented to magistrate judge jurisdiction. (ECF No. 5.)
Plaintiff is subject to 28 U.S.C. § 1915(g), which 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."
The Court takes judicial notice of the following United States District Court cases: Edwin Garcia v. Mark Romero, et al., 2:15-cv-08810-DOC-DFM, (C. D. Cal. November 12, 2016 (dismissed on January 13, 2016 for frivolousness, failure to state a claim, and as malicious); Edwin Garcia v. Judge Henry Hall, 2:15-CV-08642-DOC DFM (C.D. Cal. November 5, 20150 (dismissed on November 17, 2015 for frivolousness, failure to state a claim, and as malicious); and Edwin Garcia v. L. A. County Sheriff's Office, et al.,,2:15-CV-08645-DOC-DFM (C. D.Cal. November 5, 2015)(dismissed on November 17, 2015, for frivolousness, failure to state a claim, and as malicious). --------
The Court has reviewed Plaintiff's complaint and his allegations do not satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). DESCRIBE CLAIMS. (ECF No. 1, pp. 2-5.). Plaintiff alleges a single instance of excessive force on September 10, 2015, and allegations of a correctional officer impersonating a lieutenant and denying his inmate grievances. Plaintiff makes no allegations concerning any imminent danger of serious physical injury. Therefore, Plaintiff has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and must pay the $400.00 filing fee if he wishes to litigate this claim.
Accordingly, the Court HEREBY ORDERS as follows:
1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is DENIED; and,
2. This action is DISMISSED without prejudice to re-filing accompanied by the $400.00 filing fee. IT IS SO ORDERED.
Dated: August 23 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE