Opinion
No. C 03-4556 WHA (PR)
October 27, 2003
JUDGMENT
Pursuant to the court's order entered today, a judgment of dismissal without prejudice is hereby entered. Plaintiff shall take nothing by way of his complaint.
DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS AND ORDER OF DISMISSAL (Docs 2 4)
This case was opened when Perea filed a habeas petition on a pre-printed form. His two claims are that prison authorities are trying to force him to give a DNA sample and that unnecessary force has been used against him. These are not habeas claims, as they do not go to the fact of his incarceration or its duration, so the petition will be treated as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (court may construe habeas petition as civil rights complaint);Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action is proper method of challenging conditions of confinement); Crawford v. Bell 599 F.2d 890, 891-92 n. 1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint). Plaintiff has had at least three cases or appeals previously dismissed as frivolous, malicious, or for failure to state a claim. These are: Perea v. State, 00-cv-6094 (E.D. Cal. Feb. 16, 2001) (order dismissing for failure to state claim); Perea v. State, 00-cv-6210 (E.D. Cal. Nov. 7, 2000) (order dismissing for failure to state claim); Perea v. USA, 01-cv-521 (M.D. Fla. May 3, 2001) (order of dismissal); Perea v. USA, 01-12795-F (11th Cir. Oct. 17, 2001) (dismissal of appeal as frivolous)).The Prison Litigation Reform Act of 1995 ("PLRA") 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 he 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 4) is DENIED and this action is DISMISSED. Plaintiff's earlier motion for leave to proceed in forma pauperis (doc 2) is DENIED as moot. The clerk shall close the file.
IT IS SO ORDERED.