Ochoa v. Spiers

Full title: ARTURO TORRES OCHOA, Plaintiff, v. K. SPIERS, et al., Defendants.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Dec 23, 2013

Case No. 3:13-cv-00619-MMD-VPC (D. Nev. Dec. 23, 2013)

Opinion

Case No. 3:13-cv-00619-MMD-VPC

12-23-2013

ARTURO TORRES OCHOA, Plaintiff, v. K. SPIERS, et al., Defendants.

MIRANDA M. DU

ORDER

This prisoner civil rights action comes before the Court following plaintiff's failure to pay the $350.00 filing fee in response to the Court's order of November 14, 2013.

Pursuant to 28 U.S.C. § 1915(g), "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 is frivolous, malicious, or fails to state a claim upon which relief may be granted," he may not proceed in forma pauperis and instead must pay the full $350.00 filing fee in advance, unless he is under "imminent danger of serious physical injury." See Andrews v. King, 398 F.3d 1113, 1123 (9^th Cir. 2005); see also Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9^th Cir. 1999); Tierneyv. Kupers, 128 F.3d 1310, 1311-12 (9^th Cir. 1997).

In the order of November 14, 2013, the Court found that, on at least three (3) occasions, the Court has dismissed civil actions commenced by plaintiff while in detention for failure to state a claim for which relief may be granted. (Dkt. no. 3).¹ The Court found that, in the complaint, plaintiff failed to plausibly allege that he is under imminent danger of serious physical injury. (Id.) The Court denied plaintiff's application to proceed in forma pauperis and ordered he must pay the full filing fee within thirty (30) days or his case would be dismissed, pursuant to 28 U.S.C. § 1915(g). (Id.)

1

Plaintiff has not paid the filing fee or otherwise responded to the Court's order of November 14, 2013. Plaintiff, having failed to pay the filing fee for this action and having failed to demonstrate that he is under imminent danger of serious physical injury, has not made the showing required by 28 U.S.C. § 1915(g) to allow his complaint to proceed.

It is therefore ordered that this action is dismissed without prejudice for failure to pay the filing fee. The Clerk of Court shall enter final judgment accordingly.

_______________

MIRANDA M. DU

UNITED STATES DISTRICT JUDGE

See Ochoa v. Cook, et al., 3:02-cv-00450-DWH-RAM; Ochoa v. Willis, et al., 3:02-cv-00545-ECR-VPC (both dismissed for failure to state a claim upon which relief may be granted); Ochoa v. Putter C/O, et al., 3:10-cv-00364-HDM-RAM (dismissed as delusional and factually frivolous). The Court takes judicial notice of its prior records in the above matters.