Opinion
No. CV 05-3577-PHX-NVW (MEA).
November 16, 2005
ORDER
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by a state prisoner. In lieu of paying the $250.00 filing fee, Plaintiff seeks leave to proceed in forma pauperis. Because he has three strikes under 28 U.S.C. § 1915(g), the Court will deny his request and dismiss his action.
The three strikes rule, 28 U.S.C. 1915(g), provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.28 U.S.C. § 1915(g). The constitutionality of this rule has been upheld by the Ninth Circuit Court of Appeals. Andrews v. King, 398 F.3d 1113, 1123 (9th Cir. 2005); Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).
Plaintiff's action falls within the three strikes rule. First, the Court has previously dismissed three of Plaintiff's prior actions for failure to state a claim. See Dunlap v. Day, No. CV 04-0507-TUC-RCC (D. Ariz.) (Aug. 4, 2004 Ord. J.); Dunlap v. Walker, No. CV 04-251-PHX-NVW (SLV) (D. Ariz.) (July 14, 2004 Ord. J.); Dunlap v. Dunlap, No. CV 02-0475-TUC-RCC (D. Ariz.) (Sept. 19, 2003 Ord. J.). Second, his allegations do not fall within the exception for imminent danger of serious physical injury. Plaintiff sues three corrections officers who allegedly placed him in a cage outside at night for five hours in extremely cold and rainy weather on February 16, 2005, nearly nine months ago. An allegation that imminent danger was faced in the past is insufficient to meet the imminent danger exception. Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003); Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 (3d Cir.), cert. denied, 533 U.S. 953 (2001); Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). Therefore, Plaintiff is not entitled to proceed in forma pauperis, and his Complaint must be dismissed for failure to pre-pay the $250.00 filing fee.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Dkt. #1) is denied; and
(2) The Complaint and this action are dismissed for failure to pre-pay the $250.00 filing fee pursuant to 28 U.S.C. § 1915(g), and the Clerk of Court shall enter a judgment of dismissal accordingly.