Opinion
Case No. 1:06-CV-01158 AWI SMS PC, (Doc. 2).
August 31, 2006
Plaintiff Keith Thomas ("plaintiff") is a state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. On August 28, 2006, plaintiff filed a complaint and a motion seeking leave to proceed in forma pauperis.
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n 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." To date, plaintiff has filed sixty-two actions in the United States District Court for the Eastern District of California and has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted. Thus, plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury.
Among the dismissals suffered by plaintiff that count as strikes under 1915(g) are Thomas v. Galaza, CV-F-00-5345-AW I-LJO-P (dismissed for failure to state a claim and/or as frivolous on 6/26/00), Thomas v. Kim, CV-F-99-6553-AW I-HGB-P (dismissed for failure to state a claim on 8/29/00), and Thomas v. Galaza, CV-F-00-5348-OWW-LJO-P (dismissed for failure to state a claim on 11/14/00).
The court has reviewed plaintiff's complaint and finds that plaintiff has alleged no facts that support a finding that he is, at this time, under imminent danger of serious physical injury. Accordingly, plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action.
Based on the foregoing, the court HEREBY RECOMMENDS that:
1. Pursuant to 28 U.S.C. § 1915(g), plaintiff be denied leave to proceed in forma pauperis;
2. Plaintiff be ordered to submit the $350.00 filing fee in full within fifteen (15) days; and
3. If plaintiff fails to pay the $350.00 filing fee in full within fifteen (15) days, this action be dismissed, without prejudice.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.