Opinion
CASE NO. 1:11-cv-01295-LJO-GBC (PC) USCA CASE NO. 11-16937 ECF No. 8.
08-23-2011
ERIC LEE HACKETT, Plaintiff, v. CITY OF FRESNO FAX AREA EXPRESS, et al., Defendants.
ORDER DENYING PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA
PAUPERIS ON THE APPEAL FILED
AUGUST 11, 2011
CLERK'S OFFICE TO SERVE COPY OF
ORDER ON NINTH CIRCUIT
ORDER
Plaintiff Eric Lee Hackett is a prisoner who was proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On August 8, 2011, the Court dismissed this action, without prejudice, based on the fact that Plaintiff has filed three or more actions which were dismissed for failure to state a claim, making him subject to Section 1915(g) and judgment was entered. (ECF Nos. 3 & 4.) Plaintiff filed a notice of appeal on August 11, 2011. (ECF No. 5.) Then, on August 19, 2011, Plaintiff filed an application to proceed in forma pauperis on his appeal. (ECF No. 8.) This Motion is now before the Court.
The Court takes judicial notice of the following cases: 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). 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).
28 U.S.C. § 1915 governs proceedings in forma pauperis. 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."
Because Plaintiff is subject to Section 1915(g) and does not meet the imminent danger exception, Plaintiff is not entitled to proceed in forma pauperis on appeal. Fed. R. App. P. 24(a)(4)(C).
Based on the foregoing, it is HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma pauperis on the appeal filed on August 11, 2011;IT IS SO ORDERED.
2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this Order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal; and
3. The Clerk of the Court shall serve a copy of this Order on Plaintiff and the United States Court of Appeals for the Ninth Circuit.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE