Opinion
2:22-cv-1360 AC P
08-04-2022
VERNON WAYNE MCNEAL, Plaintiff, v. B. EVERT, et al., Defendants.
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 2. This proceeding was referred to a magistrate judge by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)(B).
A review of court records reveals that on at least three occasions, lawsuits filed by the plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted:
• McNeil v. Ervin, No. 2:07-cv-2240 LKK EFB (E.D. Cal. Mar. 3, 2010) (“Ervin”) (dismissed for failure to state a claim after defendants filed motion to dismiss) (Ervin, ECF Nos. 16, 30, 31);
• McNeal v. Dalu, No. 2:09-cv-1626 JAM KJM (E.D. Cal. June 29, 2010) (“Dalu”) dismissed for failure to state a claim) (Dalu, ECF Nos. 25, 26);
• McNeal v. Gonzalez, No. 1:14-cv-0030 BAM (E.D. Cal. Mar. 18, 2015) (“Gonzalez”) (dismissed for failure to state a claim) (Gonzalez, ECF Nos. 20, 21), and
• McNeal v. Cano, No. 1:14-cv-1767 DLB (E.D. Cal. Aug. 18, 2015) (“Cano”) (dismissed for failure to follow court order and for failure to prosecute after initial dismissal with leave to amend for failure to state a claim) (Cano, ECF Nos. 8 at 8; 9-11).
See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (holding dismissal with leave to amend for failure to state claim followed by failure to amend constitutes strike under Section 1915(g)). The style of the dismissal or of the procedural posture is immaterial. See El Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016).
On July 20, 2020, in McNeal v. Roberts, No. 2:18-cv-2998 KJM AC P (“Roberts”), plaintiff was accordingly found to be a three-strikes litigant within the meaning of 28 U.S.C. § 1915(g). See Roberts, ECF Nos. 7, 11-13 (recommendations, declaration, judgment and order). Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
The complaint does not allege any facts which suggest that plaintiff is under imminent danger of serious physical injury. See ECF No. 1. Therefore, he must submit the appropriate filing fee in order to proceed with this action.
Accordingly, IT IS HEREBY ORDERED that, within thirty days from the date of this order, plaintiff shall submit the appropriate filing fee. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.