Opinion
2:22-CV-00132-RMP
08-03-2022
GRAHAM SHERRILL, Plaintiff, v. SUPERINTENDENT JAMES KEY, ASSISTANT SUPERINTENDENT RIVERA, CPM DEUNICH and SENA BLANCHER, Defendants.
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE
ROSANNA MALOUF PETERSON, SENIOR UNITED STATES DISTRICT JUDGE
By Order filed June 28, 2022, the Court directed Plaintiff Graham Sherrill, a pro se prisoner at the Airway Heights Corrections Center, to show cause why the Court should grant his application to proceed in forma pauperis. ECF No. 6. In the alternative, Plaintiff could have paid the $402.00 filing fee. Id.
On July 12, 2022, Plaintiff filed a document titled “motion to show cause... ” which the Court liberally construes as his Response to the Order to Show Cause. ECF No. 7. After careful review of Plaintiff's submission, the Court finds that Plaintiff has failed to demonstrate that he was under imminent danger of serious physical injury when he initiated this case and is thus precluded under 28 U.S.C. § 1915(g) from proceeding in this action without prepayment of the filing fee. See O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
Plaintiff attempts to refute the Court's finding that he filed three or more actions that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, see ECF No. 6 at 2-3, claiming that he was subject to quarantine between November 2021 and January 2022. ECF No. 7 at 2. However, only one of four relevant dismissals occurred during that timeframe. See Sherrill v. Watkins et al, No. 2:21-cv-00201-RMP (E.D. Wash. Nov. 19, 2021) (dismissed with prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)). Because the appeal of that case also was dismissed as frivolous, see Sherrill v. Watkins et al., No. 21-35991 (9th Cir. June 17, 2022), the Court cannot infer that the dismissal was excusable by this quarantine.
Having reviewed Plaintiff's submission, the Court finds that he has failed to demonstrate that his eligible to proceed in forma pauperis under 28 U.S.C. § 1915(g), or that he was under imminent danger of serious physical injury when he filed his complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). Therefore, Plaintiff has lost the privilege of filing this lawsuit in forma pauperis. Because Plaintiff did not avail himself of the opportunity to pay the $402.00 filing fee, he may not proceed with this action.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's application to proceed in forma pauperis, ECF No. 4, is DENIED.
2. This action is DISMISSED WITHOUT PREJUDICE for nonpayment of the filing fee as required by 28 U.S.C. § 1914.
3. The District Court Clerk shall CLOSE the file.
4. The Court certifies any appeal of this dismissal would not be taken in good faith.
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter judgment, and provide copies to Plaintiff.