Opinion
1:16-cv-00596-AWI-MJS (PC)
12-09-2016
WILLIE WEAVER, Plaintiff, v. RIOS, Defendants.
ORDER ADDRESSING OBJECTIONS DOCKETED ON NOVEMBER 15, 2016
ORDER DIRECTING PLAINTIFF TO PAY FILING FEE IN FULL WITHIN TWENTY-ONE DAYS
TWENTY-ONE DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on April 28, 2016. (ECF No. 1.)
On September 26, 2016, Plaintiff filed a motion to proceed in forma pauperis ("IFP"). (ECF No. 13.) On September 27, 2016, the Magistrate Judge issued findings and recommendations ("F&R") to deny Plaintiff's motion for leave to proceed IFP pursuant to the "three strike rule" and to require Plaintiff to pay the filing fee in full within twenty-one days. (ECF No. 14.) Plaintiff was granted fourteen days to file objections to the F&R. Id. Receiving no objections, on November 15, 2016, this Court issued an order adopting the F&R in full, denying Plaintiff's motion to proceed IFP, and directing Plaintiff to pay the $400 filing fee in full within twenty-one days. (ECF No. 15.)
Shortly after the above-described order adopting was filed, Plaintiff's objections were docketed. The objections were received by Clerk's office on November 14, 2016. The proof of service indicates that Plaintiff placed his objections in the prison mail system on October 12, 2016. (ECF No. 16).
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."
There is no question that Plaintiff has incurred more than three strikes. The only issue, therefore, is whether Plaintiff is under imminent danger of serious physical harm. The Court found Plaintiff was not, as his extremely sparse three-page complaint made no more than the conclusory allegation that Defendant harassed Plaintiff and put him at risk of injury. Plaintiff now argues that the claims within his complaint are meritorious, and should be considered by the Court, yet he does not allege that he is under imminent danger of serious physical harm. He also appears to challenge the constitutionality of § 1915(g) and the Antiterrorism and Effective Death Penalty Act ("AEDPA"), but does not elaborate on these claims.
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Plaintiff has filed dozens of unsuccessful cases in the Eastern District of California; however, given the volume of Plaintiff's filings, the Court only takes judicial notice of the following seven cases: Weaver v. Davisson, 2:14-cv-01906-MCE-DAD (E.D. Cal.) (dismissed for failure to state a claim on September 29, 2014); Weaver v. Connelly, 2:14-cv-01800-MCE-AC (E.D. Cal.) (dismissed for failure to state a claim on November 18, 2014); Weaver v. Attorney General, 2:14-cv-01132-JAM-DAD (E.D. Cal.) (dismissed as frivolous on October 22, 2014); Weaver v. California Correctional Institution, 1:06-cv-01210-OWW-LJO (E.D. Cal.) (dismissed as frivolous and malicious on October 3, 2006); Weaver v. California Correctional Institution, 1:06-cv-01208-OWW-LJO (E.D. Cal.) (dismissed as frivolous and malicious on October 3, 2006); Weaver v. Tehachapi Confinement SHU, 1:06-cv-00341-AWI-LJO (E.D. Cal.) (dismissed for failure to state a claim on September 28, 2006); Weaver v. California Correctional Institution, 1:06-cv-00429-AWI-SMS (E.D. Cal.) (dismissed for failure to state a claim and as frivolous on September 12, 2006). --------
Meritorious or no, Plaintiff has failed to show that he is entitled to proceed IFP.
ORDER
Accordingly, IT IS HEREBY ORDERED that: 1. The Court's previous denial of in forma pauperis status (ECF No. 15) remains in place; 2. Plaintiff is directed to pay the $400 filing fee in full within twenty-one days of this order; and 3. The failure of Plaintiff to comply with this order will result in dismissal of this case without further notice. IT IS SO ORDERED. Dated: December 9, 2016
/s/_________
SENIOR DISTRICT JUDGE