Opinion
1:16-cv-00321-LJO-BAM
03-12-2016
MATTHEW B. CRAMER, Plaintiff, v. CAROL L. CONEY, 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 (ECF Nos. 1 and 2)
Plaintiff Matthew B. Cramer, a pre-trial detainee proceeding pro se, filed this civil action on March 4, 2016. Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. §1915. (Doc. 2).
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 takes judicial notice of the following Eastern District of California cases: Cramer v. Schwarzenegger, case number 1:08-cv-01310-GSA (dismissed April 24, 2009, for failure to state a claim; no appeal filed); Cramer v. Calif. Dep't of Justice, 2:00-cv-02374-DFL- DAD (dismissed Sept. 26, 2001, for failure to state a claim and frivolous; no appeal filed); and Cramer v. Ty Warner, Inc., 2:00-mc-00099-FCD-GGH (dismissed Jul. 26, 2001, for failure to state a claim; no appeal filed). Accordingly, prior to the date he filed this action, Plaintiff had at least three strikes under section 1915(g), and he is precluded from proceeding in forma pauperis unless, at the time he filed suit, he was in imminent danger of serious physical injury. Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007).
Plaintiff is currently housed at the Bob Wiley Detention Facility in Visalia, California. Plaintiff's allegations do not demonstrate that he is under imminent danger of serious physical injury. Rather, Plaintiff's complaint concerns allegations of interference with his religious freedom, hate crimes and past death threats involving private actors. These individuals do not appear to be housed with Plaintiff at the Bob Wiley Detention Facility, and there is no assertion that he is under imminent danger of serious physical injury. (Doc. 1). Therefore, Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action. See, e.g., Cramer v. Wittman, Case No. 1:13-cv-00451-LJO-SKO (action brought by Matthew B. Cramer while housed at Bob Wiley Detention Facility dismissed without prejudice pursuant to 28 U.S.C. 1916(g) on March 29, 2013; no appeal filed).
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.
Dated: March 12 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE