Opinion
Case No. 1:13-cv-02013-LJO-SKO PC
12-13-2013
WILLIE BELL, JR., Plaintiff, v. AVENAL STATE PRISON, et al., Defendants.
ORDER (1) DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS, (2) DISMISSING ACTION,
WITHOUT PREJUDICE, PURSUANT TO 28
U.S.C. § 1915(G), AND (3) DIRECTING
CLERK OF COURT TO ENTER
JUDGMENT
(Docs. 1 and 2)
Plaintiff Willie Bell, Jr., a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 9, 2013. Plaintiff seeks leave to proceed in forma pauperis in this case.
However, 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 it does not involve imminent danger of serious physical injury to Plaintiff. Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). Plaintiff's claims relate to issues with mail, property, and the trust account office, and they arise from events at Avenal State Prison in Avenal, California.
The Court takes judicial notice of the following United States District Court cases: Bell v. Weathers, et al., case number 1:01-cv-06480-OWW-LJO (E.D. Cal.) (dismissed on Jan. 24, 2003, for failure to state a claim; no appeal filed); Bell v. Almager, et al., case number 3:08-cv-00165-H-AJB (S.D. Cal.) (dismissed on Feb. 21, 2008, for failure to state a claim; dismissal affirmed on appeal on Aug. 23, 2010); and Bell v. Davidson, et al., case number 2:12-cv-03424-US-FFM (C.D. Cal.) (dismissed on May 17, 2012, for failure to state a claim; appeal determined to be frivolous and dismissed on Nov. 15, 2012, for failure to pay filing fee). These strikes were final prior to the date Plaintiff filed this action. Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011).
Plaintiff's address of record is California Institution for Men in Chino, and he alleges he was transferred there on September 24, 2013. (Compl., p. 17.)
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In conclusion, because Plaintiff is not in imminent danger of serious physical injury, he is not entitled to proceed in forma pauperis. Plaintiff must pay the filing fee if he wishes to litigate these claims.
Accordingly, the Court HEREBY ORDERS as follows:
1. Plaintiff's motion for leave to proceed in forma pauperis in this action is DENIED;IT IS SO ORDERED.
2. This action is DISMISSED, without prejudice to re-filing accompanied by the $400.00 filing fee; and
3. The Clerk of the Court shall enter judgment.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE