Opinion
No. C 03-2050 WHA (PR), (Doc 3)
October 7, 2003
DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS AND ORDER OF DISMISSAL
This is a pro se civil rights complaint under 42 U.S.C. § 1983 filed by a state prisoner. She has applied for leave to proceed in forma pauperis.
Plaintiff has had at least three cases or appeals previously dismissed as frivolous, malicious, or for failure to state a claim. These are:Johnson v. Benov, C 01-2165 WHA (PR),(N.D. Cal. Oct. 17, 2001) (order of dismissal); Johnson v. Benov, 02-15129 (9th Cir. summary affirmance of dismissal for failure to state a claim);Johnson v. Metropolitan Detention Center, 00-9267 SVW (C.D. Cal. Nov. 15, 2001) (dismissing amended complaint without further leave to amend); Johnson v. MDC, 01-57165 (9th Cir. Sept. 19, 2002) (summary affirmance of dismissal for failure to state claim);Johnson v. MDC Los Angeles, 99-11190 (C.D. Cal. Nov. 4, 1999);Johnson v. MDC, 00-1470 (C.D. Cal. Feb. 18, 2000).
The Prison Litigation Reform Act of 1995 ("PLRA") became effective on April 26, 1996. Among other things, it provides that a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis "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). "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the [PLRA's] effective date." Tierney v Kupers, 128 F.3d 1310, 1312 (9th Cir 1997).
Because plaintiff has had three or more prior prisoner actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief could be granted, and does not allege she is in imminent danger of serious physical injury, this case will be dismissed. This dismissal will not bar plaintiff from bringing the claims in a paid complaint, of course, because 28 U.S.C. § 1915(g) only prevents "three strikes" litigants from bringing cases in forma pauperis.
CONCLUSION
For the reasons set out above, leave to proceed in forma pauperis (doc 3) is DENIED and this action is DISMISSED. No fee is due. The clerk shall close the file. IT IS SO ORDERED.
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.