Opinion
No. C 00-2773 MMC (PR)
August 29, 2002
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (Docket No. 18)
Onofre Serrano ("plaintiff"), a California prisoner currently incarcerated at California State Prison, Corcoran, filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis.
Following a review of the complaint pursuant to 28 U.S.C. § 1915A(a), the Court ordered the complaint served on defendants and ordered defendants to file a dispositive motion or indicate why one was not warranted. Defendants have filed a motion for judgment on the pleadings or alternatively for summary judgment on the grounds that, inter alia, this action is barred by 28 U.S.C. § 1915(g). Plaintiff has filed an opposition and defendants have replied.
DISCUSSION
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 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).
Defendants have presented evidence showing that plaintiff has had the following three prior prisoner actions ("strikes") dismissed by this Court and another federal court on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted.See Serrano v. Estrada, et al., No. 99-5201 MMC (N.D. Cal. June 30, 2000) (dismissing action after complaint initially dismissed with leave to amend for failure to state a claim and plaintiff elected not to amend);Serrano v. Estrada, et al., No. 98-3803 MMC (N.D. Cal. Dec. 1, 1998) (dismissing action with prejudice because class action claims were not cognizable); Serrano v. Rowland et al., No. 95-1598 (C.D. Cal. July 10, 1995) (dismissing action for failure to state a cognizable claim). Plaintiff presents no evidence creating a disputed issue of fact as to these prior dismissals.
The Court takes judicial notice of these prior actions under Federal Rule of Evidence 201, as well as of the fact that plaintiff has also a at least twelve other actions or appeals in the federal courts at least four of which have been dismissed. See, e.g., Serrano v. Estrada, No 98-17342 (9th Cir. Mar. 23, 1999) (dismissing action for failure to perfect appeal); Serrano v. Pickering, et al., No. 97-4407 MMC (N.D. Cal. Aug. 27, 1998) (dismissing for failure to exhaust); see also Serrano v. United States Justice Dept., No. 10120 (C.D. Cal. Dec. 16, 1998); Serrano v. Lindsey, No. 98-346 MMC (N.D. Cal. Mar. 6, 1998). Although these dismissals may also count as strikes, the Court need not decide that issue because the three strikes listed above are sufficient to support dismissal.
Plaintiff argues that he is in "imminent" danger of a chilling of the exercise of his First Amendment rights. There is an exception to § 1915(g) where the prisoner is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The potential chilling of plaintiff's exercise of his First Amendment rights is not a danger of "physical injury." Plaintiff alleges that defendants, in retaliation for plaintiff's filing lawsuits and grievances, took improper disciplinary action against him and obstructed his access to the courts. There is no allegation of any physical injury or danger of such injury. Since there is no allegation of an "imminent danger of serious physical injury," this case is not exempt from § 1915(g).
CONCLUSION
In light of the foregoing, defendants' motion for summary judgment is GRANTED.
Because the Court finds that this action is barred by § 1915(g), it need not reach the other arguments set forth in defendants' motion for summary judgment.
This order terminates docket number 18 and all other pending motions.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED defendants' motion for summary judgment is GRANTED.