Opinion
1:04-cv-06717-AWI-SMS-P.
May 29, 2006
Plaintiff, Ladell Stephens ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On October 12, 2005, the Magistrate Judge filed Findings and Recommendations that recommended Plaintiff's in forma pauperis status be revoked and this action be dismissed pursuant to 28 U.S.C. § 1915(g). The Findings and Recommendations were served on the parties and contained notice to the parties that any objections to the Findings and Recommendations were to be filed within thirty (30) days. On October 28, 2005, Plaintiff filed objections to the Magistrate Judge's Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. The objections do not provide a basis to not adopt the Findings and Recommendations.
As explained by the Magistrate Judge, 8 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that:
In no event shall a prisoner bring a civil action . . . under this section 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.
The Magistrate Judge properly recommended the court dismiss this action pursuant to Section 1915(g) because the record shows that Plaintiff has, on three or more prior occasions, brought an action that was dismissed as frivolous, malicious, or for failure to state a claim. The fact Plaintiff may disagree with the prior findings regarding his prior actions is not grounds to find these actions were not dismissed as frivolous or for failure to state a claim. The Magistrate Judge correctly concluded that Plaintiff was not under imminent danger of serious physical injury because the documents submitted by the parties shows that Plaintiff recieved some medical care. Plaintiff's disagreement with prison personel about his course of treatment does not establish an imminent danger of serious physical injury under Section 1915(g).
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed October 12, 2005, are ADOPTED IN FULL;
2. Plaintiff's in forma pauperis status is REVOKED;
3. The "Order Directing Monthly Payments" is VACATED; and,
4. This action is DISMISSED, without prejudice, pursuant to Section 1915(g).
IT IS SO ORDERED.