Opinion
1:13-cv-1753-LJO-GSA-PC
11-08-2013
MICHAEL WHITFIELD, Plaintiff, v. MICHAEL SPAIN; FRESNO REGIONAL COMMUNITY MEDICAL CENTER, Defendants.
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION,
WITHOUT PREJUDICE TO
REFILING WITH SUBMISSION OF
$400.00 FILING FEE IN FULL
(Doc. 2.)
ORDER FOR CLERK TO CLOSE
CASE
Michael Whitfield ("Plaintiff") is a prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 31, 2013, together with an application to proceed in forma pauperis. (Docs. 1, 2.)
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) 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." A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury.
Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are the following cases: 1:02-cv-5613 OWW-SMS PC, Whitfield v. Armendez (E.D. Cal.) (Dismissed for failure to state a claim on December 10, 2002); 1:11-cv-1130 SKO PC, Whitfield v. Greenman et al., (E.D. Cal.) (Dismissed for failure to state a claim on August 13, 2012); 1:11-cv-1375- SKO PC, Whitfield v. Tulp, et. al., (E.D. Cal.) (Dismissed for failure to state a claim on October 4, 2012); and 1:11-cv-1243-DLB PC, Whitfield v. Downs, et al., (E.D. Cal.) (Dismissed for failure to state a claim on December 13, 2012).
The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In the Complaint, Plaintiff alleges that on April 21, 2013, while he was attempting to receive medical treatment at Fresno Regional Medical Center, Defendant Michael Spain, a security guard at the hospital, unlawfully arrested Plaintiff pursuant to a restraining order. The Complaint is devoid of any showing that Plaintiff is under imminent danger of serious physical injury at the time he filed the Complaint. Id. Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Therefore, Plaintiff's application to proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.
The Court expresses no opinion on the merits of Plaintiff's claims.
--------
Based on the foregoing, it is HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's application to proceed in forma pauperis in this action is DENIED;IT IS SO ORDERED.
2. This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and
3. The Clerk is directed to CLOSE this case.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE