Opinion
No. CIV S-11-3322 CKD P
01-04-2012
MARVIN HARRIS Plaintiff, v. TOM VIRGA, et al. Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel in an action under 42 U.S.C. § 1983. He has not filed an application to proceed in forma pauperis (IFP), nor has he paid the filing fee of $350.00. The court's usual practice is to allow prisoners proceeding pro se additional time to submit a completed application to proceed IFP. However, in this case, it appears plaintiff is barred from receiving IFP status under 28 U.S.C. § 1915(g).
The "three strikes" provision of the Prison Litigation Reform Act (PLRA) empowers a court to deny IFP status to a litigant who has had three actions "dismissed on the grounds that [they are] frivolous, malicious, or fail[] to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). An action meets this standard if it is "based on an indisputably meritless legal theory" or its "factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit and claims of infringement of a legal interest which clearly does not exist." Neitzke v. Williams, 490 U.S. 319, 327 (1989) (internal citation omitted). The bar does not apply if a plaintiff can demonstrate that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
"The statute contemplates that the 'imminent danger' will exist contemporaneously with the bringing of the action." Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.), cert. denied, 533 U.S. 953 (2001). "Imminent" means "about to occur at any moment or [] impending." Id. at 315; see also Oxford English Dictionary, available at http://dictionary.oed.com ("close at hand in its incidence; coming on shortly").
The court's review of its records shows that plaintiff had already run afoul of the "three strikes" provision before he filed this case. In Harris v. Reynolds, the court cited three previous dismissals against plaintiff for failure to state a claim and ordered plaintiff to show cause why his application to proceed IFP should not be denied under § 1915(g) of the PLRA. See Harris v. Reynolds, Civil Action No. 2:09-cv-1817 JAM DAD (Docket No. 7). "Show cause" in that context could only mean plaintiff showing he was under imminent danger of serious physical injury and thus exempt from the bar of § 1915(g). Plaintiff failed to make that showing, his IFP application was denied, and he was required to pay the fee for filing a civil lawsuit in order to proceed. See id. (Docket No. 9). When he failed to pay the fee, his case was dismissed. See id. (Docket No. 17).
The court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986).
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Plaintiff's status in this court is that of a "three strikes" violator under the PLRA. The court will therefore order him to show cause why he is not barred from proceeding IFP under 28 U.S.C. § 1915(g) - to show, in other words, that he is under imminent danger of serious physical injury and therefore exempt from the "three strikes" bar in this case.
Accordingly, IT IS HEREBY ORDERED that plaintiff has twenty-one days from the entry of this order in which show cause why he is not barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE