Opinion
No. C 01-3460 MMC (PR) (Docket Nos. 23 24)
August 22, 2002
ORDER OF DISMISSAL
Randy Carson Warner ("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 Correctional Officer L. Humphrey ("defendant") and ordered defendant to file a dispositive motion or indicate why one was not warranted. Defendant has filed a motion to dismiss the complaint under 28 U.S.C. § 1915(g), and plaintiff has filed an opposition.
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).
Plaintiff has had three or more prior prisoner actions or appeals ("strikes") dismissed by this Court and other federal courts on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Warner v. City of Glendale, No. 99-55653 (9th Cir. May 14, 1999) (dismissing appeal for lack of jurisdiction); Warner v. Prunty, No. 97-5447 (April 24, 1997) (same); Warner v. Prunty, No. 97-55391 (9th Cir. April 24, 1997) (same); Warner v. Dang, No. 99-5158 (E.D; Cal. 10 July 6, 1999) (dismissing action after complaint initially dismissed with leave to amend and plaintiff opted not to amend); Warner v. Ayers, No. 01-2246 VRW (N.D. Cal. June 15, 2001) (dismissing duplicative complaint as abusive under § 1915A). Plaintiff argues that the complaint in the instant action is not frivolous or malicious. Section 1915(g), however, applies to "a civil action or appeal"; once a prisoner has three or more strikes, § 1915(g) bars any future civil actions or appeals, even if they are not frivolous or malicious.
Plaintiff has also had at least ten other actions or appeals dismissed. Although these may also count as strikes, the Court need not decide this issue because plaintiff has already had more than four strikes.
Plaintiff states that he has paid the filing fee, which in this case is $150.00. See 28 U.S.C. § 1914(a). A review of the Court's docket and financial account indicates that he not paid the filing fee and that his application to proceed in forma pauperis was granted.
The only exception is if the prisoner is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Allegations of past danger are insufficient to trigger the imminent danger exception. Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir. 2001) (en banc). Plaintiff alleges in this case that defendant pepper-sprayed him on one occasion in September 2001. There is no allegation of any continuing or "imminent" danger to plaintiff. Thus, this case is not exempt from § 1915(g).
CONCLUSION
In light of the foregoing, defendant's motion to dismiss is GRANTED and this action is DISMISSED under 28 U.S.C. § 1915(g).
This order terminates docket numbers 23 and 24.
IT IS SO ORDERED.