Opinion
No. C 02-3917 SI (pr)
September 3, 2002
JUDGMENT
This action is dismissed without prejudice to plaintiff making the same allegations in a complaint for which he pays the full $150.00 filing fee at the time of filing the complaint.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Michael J. McDowall, a prisoner at the Salinas Valley State Prison, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 (" PLRA"), which was enacted on April 26, 1996, provides that a prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 "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) requires that this court consider prisoner actions dismissed prior to, as well as after, the PLRA's enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).
McDowell 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 may be granted. McDowall filed over thirty cases in the U.S. District Court for the Eastern District of California. The cases dismissed as frivolous include McDowall v. Appelbaum, E. D. Cal. No. 01-1075, McDowall v. Hollows, E. D. Cal. No. 01-1535, and McDowall v. Stone, E. D. Cal. No. 01-1552. Because McDowall has had at least three prior dismissals and is not under imminent danger of serious physical injury, his requests to proceed in forma pauperis are DENIED and this action is DISMISSED. This dismissal is without prejudice to McDowall making the same allegations in a complaint for which he pays the full $150.00 filing fee at the time of filing the complaint. The Clerk shall close the file.
IT IS SO ORDERED.