Opinion
No. C 03-4545 CRB (PR), (Doc # 2)
October 20, 2003
ORDER OF DISMISSAL
Plaintiff, a prisoner at Pelican Bay State Prison, filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging that prison officials' allowing of a prison guard, rather than a medically trained professional, to dispense and handle medication "resulted" in his being injured by allegedly contaminated medication. Plaintiff also sought to proceed in forma pauperis under 28 U.S.C. § 1915.
Per order filed on February 20, 2003, the court denied plaintiff's request to proceed in forma pauperis and dismissed the complaint under the authority of 28 U.S.C. § 1915A(b) on the ground that the actions and/or omissions (or policy, pattern or practice) plaintiff challenged did not amount to deliberate indifference to plaintiff's constitutional rights, but at most negligence or gross negligence not actionable under § 1983 in the prison context. See Feb.2O, 2003 Order at 2-3 (citingFarmer v. Brennan, 511 U.S. 825, 835-36 n. 4 (1994)). Plaintiff appealed.
On July 31, 2003, the Ninth Circuit denied plaintiff's request to proceed in forma pauperis on appeal and gave him 21 days to pay the requisite docketing and filing fees of $105. Plaintiff did not do so and, on August 28, 2003, the Ninth Circuit dismissed the appeal.
Plaintiff has now filed a new pro se prisoner action in this court alleging that he was denied access to the courts due to his "indigent status." Plaintiff's action is DISMISSED as legally and factually frivolous under the authority of 28 U.S.C. § 1915A(b). Plaintiff's prior action was not dismissed because he could not pay; rather, it was dismissed, and in forma pauperis status was consequently denied, because the action was "frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted," or sought "monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see O'Loughlin v. John Doe, 920 F.2d 614, 616 (9th Cir. 1990) (court may deny leave to proceed in forma pauperis if action is frivolous or without merit);Tripati v. First National Bank Trust 821 F.2d 1368, 1370 (9th Cir. 1987) (same); see also 28 U.S.C. § 1915(a)(3) (appeal may not be taken in forma pauperis if it is frivolous or not taken in good faith). Plaintiff is free to proceed in forma pauperis with a non-frivolous, legally cognizable claim.
The clerk shall close the file and terminate all pending motions (see, e.g., doc # 2) as moot. No fee is due. SO ORDERED.