Opinion
No. ED CV 13-01497-DMG (VBK)
06-11-2014
BRIAN L. BROWN, Plaintiff, v. LINDA T. McGREW, et al., Defendants.
ORDER TO SHOW CAUSE WHY PLAINTIFF
SHOULD NOT BE REQUIRED TO PAY
FULL FILING FEE
On October 24, 2013, pro se Plaintiff Brian L. Brown (hereinafter referred to as "Plaintiff"), Federal prison number 05937-010, filed a civil rights Complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) pursuant to the Court's Order re Leave to File Action Without Prepayment of Full Filing Fees, which was given Case No. ED CV 13-01497-AHS (VBK). Plaintiff named as Defendants Warden Linda T. McGrew; Mr. Luniz; Ms. Boyd; Mr. Prieto; Mr. Cintoran; Mr. Halstead and Dr. Squetini. Plaintiff alleges that Defendants violated his rights on July 15, 2013 and July 21, 2013. In Claim One, Plaintiff alleges that his Eighth Amendment rights were violated by Defendants for deliberate indifference and knowing endangerment to Plaintiff's safety. In Claim Two, Plaintiff alleges that Defendants have violated his First Amendment right to access the courts and violated federal laws. In Claim Three, Plaintiff alleges that his Eighth Amendment rights have been violated by Defendant Dr. Squetini's deliberate indifference and failure to provide adequate medical care. Plaintiff seeks injunctive and declaratory relief.
On October 24, 2013, Plaintiff also filed a "Motion to Proceed under Imminent Danger of Physical Injury 28 U.S.C. § 1915(g)" ("Motion"). Plaintiff alleges in Claim One that Defendant Luniz, by communicating to other inmates, by the disclosure of a sensitive document that Plaintiff was a sex offender, placed him in a class of inmates that subjected him to serious bodily harm. As a result of this disclosure, Plaintiff cannot go the compound as it is well established that gangs will attack inmates that have been charged as sex offenders. In Claim Three, Plaintiff alleges that Dr. Squetini, as Chief Medical Officer, has refused to fix an injury on Plaintiff's finger. Plaintiff alleges he is under imminent danger of further disability and pain. (See Motion at 2-3.)
On December 18, 2013, the Court issued an Order re Dismissal of Complaint with Leave to Amend.
On February 6, 2014, Plaintiff filed a "Second Amended Complaint." In Claim One, Plaintiff alleges that his Eighth Amendment rights were violated by Defendant Luniz' deliberate indifference wherein he disclosed sensitive information to other inmates regarding Plaintiff's status as a sex offender. In Claim Two, Plaintiff alleges that Defendants have violated his First Amendment right to access the courts, denied his administrative appeals and denied him postage.
On February 6, 2014, Plaintiff also filed a document entitled "Motion to Withdraw Claim Three" of the original Complaint as Plaintiff underwent surgery to repair his finger.
Pursuant to the Prison Litigation Reform Action ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), a prisoner shall not be authorized pursuant to 28 U.S.C. § 1915(a)(l) to commence an action or proceeding without payment of the full filing fee if such prisoner "has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action ... 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); O'Neal v. Price, 531 F.3d 1146, 1153-54 (9th Cir. 2008).
A Pacer search indicates that Plaintiff has a history of abusive filings. Plaintiff is listed on the National Pro Se Three Strikes database as having accumulated more than three strikes in cases that have been dismissed as frivolous or for failure to state a claim.
As noted, Plaintiff has filed at least three civil actions which were dismissed on the grounds of being frivolous, malicious or failing to state a claim upon which relief may be granted. Therefore, based on the strikes that Plaintiff has accumulated, he may not file another complaint without prepayment of fees unless he is in "imminent danger of serious physical injury." In the original Complaint, Plaintiff alleged that he was not being treated for an injury to his finger. Since the filing of the Complaint, Plaintiff has withdrawn that claim as he has received medical treatment for his finger. Plaintiff's other allegations do not amount to "an imminent danger of serious physical injury." It is clear that Plaintiff fails to state a claim which would suggest that he in is imminent danger of serious physical injury.
Accordingly, on or before July 3, 2014, Plaintiff is ordered to show cause as to why the Order granting him in forma pauperis status in this matter should not be vacated pursuant to 28 U.S.C. § 1915(g), and that the action be dismissed without prejudice pending payment of the full filing fee of $400.
__________
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
See Brown v. Russell, Case No. 4:02CV4036 (W.D. Ark. Order of Dismissal, dismissing case on April 23, 2002 prior to service pursuant to 28 U.S.C. § 1915(e)(2)(b)(I)-(iii)) and Docket No. 21 (April 9, 2003 Judgment of Eighth Circuit Court of Appeals, affirming dismissal); Brown v. BOP , Case No. 3:07-CV-543 (May 16, 2007 N.D. Texas Judgment, Docket No. 12, dismissing case pursuant to 28 U.S.C. § 1915(e)(2)); 285 Fed.Appx. 173 (5th Cir. July 23, 2008, dismissing appeal as frivolous or for failure to state a claim); Brown v. Narvais, Case No. 5:06-CV-228-F (W.D. Okla., Order of Dismissal, Docket No. 64 (dismissing case on April 25, 2007 pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim and issuing Three-strikes notice); and Brown v. BOP, Case No. 3:07-CV-543, N.D. Tex., Docket Nos. 8, 11, 12 (summarily dismissing case before service on May 16, 2007 pursuant to 28 U.S.C. § 1915(e)(2)).