Opinion
CASE NO. 1:11-cv-01295-LJO-GBC (PC), CLERK TO CLOSE CASE.
August 8, 2011
ORDER DISMISSING ACTION WITHOUT PREJUDICE (ECF No. 1)
ORDER
Plaintiff Eric Lee Hackett, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 5, 2011. (ECF No. 1.) This action proceeds on Plaintiff's Complaint, which has not yet been screened by this Court. No other parties have appeared.
After a review of the record of actions filed by Plaintiff in the United States District Court, it was revealed that Plaintiff has filed three or more actions that were dismissed for failure to state a claim upon which relief may be granted: Hackett v. Taylor, 1:01-cv-06076-OWW-SMS (E.D. Cal.) (Dismissed 08/22/2002 for failure to state a claim); Hackett v. Taylor, 1:02-cv-05440-OWW-SMS (E.D. Cal.) (Dismissed 08/23/2002 for failure to state a claim); Hackett v. Schwarzenegger, 1:04-cv-05124-OWW-SMS (Dismissed 08/04/2005 for failure to state a claim); Hackett v. City of Fresno, 1:06-cv-01123-OWW-SMS (E.D. Cal.) (Dismissed 11/16/2006 for failure to state a claim). This subjects him to Section 1915(g)'s three strike rule. See also Hackett v. City of Fresno Fax Area Bus, 1:09-cv-00140-OWW-GSA (E.D. Cal.) (Dismissed 10/23/2009; Court determined that Plaintiff was not eligible to proceed in forma pauperis pursuant to Section 1915 because he was a three-striker).
"This subdivision is commonly known as the `three strikes' provision. `Strikes' are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed `on the ground that [they were] frivolous, malicious, or fail [] to state a claim' are generically referred to as `strikes.' Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed [in forma pauperis]." Andrews v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir. 2005).
Section 1915(g) 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." Plaintiff is subject to section 1915(g) and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.
The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff alleges no facts supporting a finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action.
Accordingly, it is HEREBY ORDERED that:
1. This action is DISMISSED WITHOUT PREJUDICE to refiling with the submission of the $350.00 filing fee in full; and
2. Clerk to close case.
IT IS SO ORDERED.