Opinion
2:09-cv-0831-RCJ-RJJ.
April 14, 2010
ORDER
Plaintiff is a prisoner proceeding pro se and has submitted a complaint (#1) attempting to initiate a civil rights action pursuant to 42 U.S.C. § 1983. He has not submitted an application to proceed in forma pauperis or paid the filing fee. On at least three (3) occasions, the Court has dismissed civil actions commenced by the plaintiff for being frivolous.
See Robinson v. Tomasso, 2:96-cv-1065-PMP-RJJ; Robinson v. Brooks, 2:97-cv-0056-PMP-RJJ, Robinson v. Dahl, 2:97-cv-0356-PMP-LRL. Furthermore, in another action, Robinson v. Quig-Terry, 2:96-cv-0927-PMP-RLH, the Court ordered Plaintiff to file an amended complaint because his original complaint was frivolous. Plaintiff never filed an amended complaint, and the Court dismissed that action. That also operates as a dismissal for a frivolous action. The Court takes judicial notice of its prior records in the above matters.
Under 28 U.S.C. § 1915(g), "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 is frivolous, malicious, or fails to state a claim upon which relief may be granted," he may not proceed in forma pauperis and instead must pay the full $350.00 filing fee in advance, unless he is under imminent danger of serious physical injury. Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date" of April 26, 1996. Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
Plaintiff cannot proceed in forma pauperis in this action or any other civil action filed in any federal court because he has had three (3) or more prior actions dismissed for failure to state a claim upon which relief may be granted, or as frivolous or malicious. Plaintiff has not alleged, and the subject matter of this action does not indicate, that he is in imminent danger of serious physical injury. He must pre-pay the filing fee in full.
IT IS THEREFORE ORDERED that this action will be dismissed without prejudice unless plaintiff pays the $350.00 filing fee in full within thirty (30) days of entry of this order.
IT IS FURTHER ORDERED that the Clerk of Court shall send plaintiff two copies of this order. Plaintiff shall make the necessary arrangements to have one copy of this order attached to the check paying the filing fee.
IT IS FURTHER ORDERED that the Clerk of the Court shall retain the complaint.