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finding no imminent danger "for an action for damages for past wrongdoing at a jail in which the plaintiff [was] no longer detained"
Summary of this case from Rankins v. City of WindsorOpinion
No. C 03-3446 VRW (PR)
September 12, 2003
ORDER OF DISMISSAL (Doc #3)
Plaintiff, a prisoner at California State Prison, Solano, has filed a pro se prisoner complaint for damages under 42 U.S.C. § 1983 alleging that he was "rousted after a riot" while detained at the Contra Costa County Jail. Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It 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 are frivolous, malicious, or fail to state a claim upon which relief may be granted. See, e.g., Young v San Quentin State Prison, No C 03-3870 VRW (PR) (ND Cal Aug 26, 2003) (order of dismissal); Young v Chandler-Dacanay, No C 03-3869 VRW (PR) (ND Cal Aug 28, 2003) (same); Young v Plummer, No 00-2926 VRW (PR) (ND Cal Oct 23, 2000) (same); Young v Contra Costa County Public Defender's Office, No C 00-2805 JCS (PR) (ND Cal Sept 6, 2000) (same). Plaintiff therefore may proceed in forma pauperis only if he is seeking relief from a danger of serious physical injury which is "imminent" at the time of filing. SeeAbdul-Akbar v McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc):Medberry v. Butler, l85 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). He is not. After all, this is an action for damages for past wrongdoing at a jail in which plaintiff is no longer detained.
Because plaintiff has had three or more prior dismissals and is not under imminent danger of serious physical injury, his request to proceed in forma pauperis (doc #3) is DENIED and the instant action is DISMISSED without prejudice to bringing it in a paid complaint.
The Clerk shall close the file and terminate all pending motions as moot. No fee is due at this time.
SO ORDERED.