Opinion
Case No. 1:15-cv-00286-SKO (PC)
11-09-2015
LUIS LORENZO ARMENTERO, Plaintiff, v. SCHWARZ, et al., Defendants.
ORDER (1) REVOKING IN FORMA PAUPERIS STATUS, (2) VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE, (3) DIRECTING CLERK'S OFFICE TO SERVE ORDER ON CDCR AND FINANCIAL DEPT., AND (4) REQUIRING PLAINTIFF TO PAY $400.00 FILING FEE WITHIN THIRTY DAYS (Doc. 14)
Plaintiff Luis Lorenzo Armentero, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 12, 2015, and he was granted leave to proceed in forma pauperis on April 8, 2015. The Court has determined that 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." The Court has reviewed Plaintiff's complaint and finds that his allegations do not satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). Therefore, if Plaintiff wishes to proceed with this action, he must first pay the $400.00 filing fee. 28 U.S.C. § 1914.
Prior to the date he filed this action, Plaintiff had at least four dismissals that qualify as strikes under section 1915(g). Coleman v. Tollefson, ___ U.S. ___, ___, 135 S.Ct. 1759, 1765 (2015). The Court takes judicial notice of the following Eastern District of California cases: Armentero v. Tilton, et al., 2:07-cv-00268-JKS-CMK (E.D.Cal.) (dismissed for failure to state a claim on May 9, 2008); Armentero v. Lotersztain, 2:12-cv-01291-KJN (C.D.Cal.) (dismissed for failure to state a claim on Oct. 18, 2012); Armentero v. City of Avenal, et al., 1:10-cv-02403-GSA (E.D.Cal.) (dismissed for failure to state a claim on Jul. 22, 2013); and Armentero v. Lopez, et al., 1:13-cv-00673-JLT (E.D.Cal.) (dismissed for failure to state a claim on Aug. 5, 2013).
Plaintiff is presently incarcerated at California State Prison-Solano. His claims in this action arise from psychiatric treatment at Avenal State Prison in 2012.
Court records demonstrate that, to date, Plaintiff has not paid any of the filing fee. 28 U.S.C. § 1915(b)(1). --------
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's in forma pauperis status is REVOKED;IT IS SO ORDERED. Dated: November 9 , 2015
2. The order directing the California Department of Corrections and Rehabilitation ("CDCR") to collect the filing fee is VACATED;
3. The Clerk's Office shall serve a copy of this order on (1) the Director of CDCR via CM/ECF and (2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division;
4. Plaintiff has thirty (30) days from the date of service of this order within which to pay the $400.00 filing fee in full; and
5. This action will be dismissed, without prejudice, if Plaintiff fails to pay the $400.00 filing fee within thirty days.
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE