Opinion
No. C 03-4230 SI (pr)
January 30, 2004
JUDGMENT
This action is dismissed without prejudice to plaintiff making the same allegations in a complaint for which he pays the full filing fee at the time of filing the complaint.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Roger E. Grondorf, currently in custody at the Napa State Hospital, filed this pro se civil rights action under 42 U.S.C. § 1983, claiming that defendant denied him various benefits at the state mental hospital. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915 and 1915A. His application for leave to proceed in forma pauperis also is before the court for consideration.
A detailed description of Grondorf's custodial status is found in the July 30, 2003 Order of Dismissal in Grondorf v. Graziani, Case No. C 02-5958 SI. According to evidence provided in Case No. C 02-5958 SI, in 1999 Grondorf was found not guilty by reason of insanity to a charge of assault with a deadly weapon likely to produce great bodily injury and was committed to a state mental hospital for a term not to exceed four years. Grondorf's confinement following a not-guilty-by-reason-of-insanity determination appears to make him a prisoner for purposes of 28 U.S.C. § 1915 and 1915A. See generally In re Franklin, 7 Cal.3d 126, 138, 143-44 (Cal. 1972) (class of persons committed to a state mental hospital following finding of not guilty by reason of insanity was different from class of persons subjected to ordinary civil commitment proceedings).
A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 "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).
Grondorf has had three or more prior prisoner actions dismissed by this court because they were frivolous, malicious, or failed to state a claim upon which relief may be granted. The earlier dismissed actions includeGrondorf v. Mansini, C 97-4359 SI, Grondorf v. Forensic Medical Group, C 97-4535 SI, Grondorf v. Nordin, C 98-3493 SI, and Grondorf v. Ingalls, C 03-1956 SI. Because Grondorf has had at least three prior dismissals and is not under imminent danger of serious physical injury, his request to proceed in forma pauperis is DENIED and this action is DISMISSED. (Docket # 2) This dismissal is without prejudice to Grondorf making the same allegations in a complaint for which he pays the full $150.00 filing fee at the time of filing the complaint. The Clerk shall close the file.
IT IS SO ORDERED.