Opinion
No. C 03-3780 WHA (PR)
August 28, 2003
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant as barred by the "three strikes" provision of the Anti-terrorism and Effective Death Penalty Act. See 28 U.S.C. § 1915(g). A judgment of dismissal without prejudice to filing a paid complaint is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.
ORDER OF DISMISSAL; DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS (Doc 3)
Plaintiff, a prisoner at the Santa Clara County Jail, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of his confinement. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.The Prison Litigation Reform Act of 1995 ("PLRA") provides that a prisoner may not bring a civil action or appeal a civil judgment 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). "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).
Plaintiff has had three or more prior prisoner actions dismissed by this court on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief could be granted. See. e.g., C 03-2530 WHA (PR), Jernigan v. Superior Court; C 03-2529 WHA (PR), Jernigan v. Santa Clara Public Defender Dept; C 02-3092 WHA (PR), Jernigan v. Davis; C 94-20124 WHA, Jerrigan v. Stevenson; C 94-20359 RPA, Jerrigan v. Santa Clara County; C 94-20360 RPA, Jerrigan v. Santa Clara County; C 94-20363 RPA, Jerrigan v. Gentry; and C 94-20364 RPA, Jerrigan v. Mandel.
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 he 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 3) is DENIED and this action is DISMISSED without prejudice to bringing it as a paid complaint.
The clerk shall close the file.
IT IS SO ORDERED.