Opinion
No. C 03-4476 MMC (PR), (Docket No. 2)
November 4, 2003
ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff, a California prisoner, has filed this pro se civil action regarding his confinement. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 (" PLRA"), enacted April 26, 1996, provides that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "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).
Prior to the filing of the instant action, plaintiff, while a prisoner, filed more than three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Tinsley v. City and County of San Francisco, No. 00-16066 (9th Cir. Sept. 28, 2000); Tinsley v. City and County of San Francisco, No. 00-16202 (9th Cir. July 21, 2000); Tinsley v. City and County of San Francisco District Attorney, No. 02-1988 MMC (PR) (N.D. Cal. June 5, 2002); Tinsley v. City and County of San Francisco, No. 01-2102 MMC (N.D. Cal. July 2, 2002); Tinsley v. Nocetti, No. 01-2027 MMC (PR) (N.D. Cal July 2, 2001); Tinsley v. Hennessey, No. 00-2068 MMC (PR) (N.D. Cal. Sept. 15, 2000);Tinsley v. City and County of San Francisco, No. 00-1278 MMC (PR) (N.D. Cal. May 11, 2000); Tinsley v. City and County of San Francisco, et al., No. 00-1136 MMC (PR) (Aug. 1, 2000); Tinsley v. Heffernon, No. 96-2813 MMC (PR) (N.D. Cal. Sept. 18, 1996);Tinsley v. Heffernon, No. 96-308 MMC (PR) (N.D. Cal. Feb. 14, 1996).
Because plaintiff has suffered three or more such prior dismissals and is not under imminent danger of serious physical injury, the instant action is hereby DISMISSED without prejudice to plaintiff's bringing it in a complaint as to which plaintiff pays the filing fee. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). No fee is due with respect to the instant complaint. In light of this dismissal, the application to proceed in forma pauperis is DENIED and no fee is due.
Plaintiff alleges that he has cancer and that he has been ordered to be housed for treatment in San Francisco General Hospital's jail ward. Plaintiff states that he "seriously question[s] the ability of the penal system" to provide him with medical care. There is no indication, however, that plaintiff cannot receive adequate care within the medical facilities provided to him, or that he is otherwise under any "imminent" danger of physical harm.
All pending motions are terminated and the Clerk of Court shall close the file.
This order terminates Docket No. 2.
IT IS SO ORDERED.