Grandinetti v. Bauman et al

Filing 3

ORDER Pla's 1 Complaint and this action are dismissed pursuant to 28 USC 1915(g) without prejudice to Pla filing a complaint in a new case accompanied by the full $350.00 filing fee. The Clerk of Court must enter judgment and close this case. Signed by Judge Mary H Murguia on 09/12/08. (ESL)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Francis A. Grandinetti, II, Plaintiff, vs. Kay A. Bauman, et al., Defendants.

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No. CV 08-1582-PHX-MHM (DKD) ORDER

Plaintiff Francis A. Grandinetti, II, who is confined in the Corrections Corporation of America facility in Eloy, Arizona, has filed a pro se civil rights Complaint. Plaintiff has not paid the $350.00 filing fee or filed a complete Application to Proceed In Forma Pauperis.

I.

"Three Strikes Provision" of 28 U.S.C. § 1915(g) The Prison Litigation Reform Act of 1995 (PLRA), enacted on April 26, 1996,

provides that a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 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). Because § 1915(g) is a procedural rule that does not raise retroactivity concerns, cases that were dismissed before the effective date of

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§ 1915(g), i.e., April 26, 1996, may be counted as qualifying dismissals or "strikes." Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). A prisoner barred from proceeding in forma pauperis pursuant to § 1915(g) may proceed under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). More than three of the prior actions Plaintiff has filed in federal courts have been dismissed as frivolous, malicious, or as failing to state a claim. See Grandinetti v. Iranon, CV 96-101-HC (E.D. Tex. Jan. 26,1998); Grandinetti v. Iranon, CV 96-0118-TH (E.D. Tex. Jul. 20, 1998); Grandinetti v. Bobby Ross Group, Inc., CV 96-117-TH (E.D. Tex. Mar. 5, 1999); and Grandinetti v. Luna, CV 01-1090-PHX-MHM (SLV) (D. Ariz. Aug. 3, 2001). Accordingly, Plaintiff may not bring a civil action without complete pre-payment of the $350.00 filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

II.

Failure to Allege Imminent Danger of Serious Physical Injury Plaintiff appears to raise claims related to past incidents of inadequate medical care.

An allegation of past harm does not constitute a credible allegation that Plaintiff is in imminent danger of serious physical injury, as required by 28 U.S.C. § 1915(g), in order for Plaintiff to bring this action without complete pre-payment of the $350.00 filing fee. Accordingly, the Complaint and this action will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g) for failure to pre-pay the $350.00 filing fee. If Plaintiff wishes to reassert these claims in the future, he must pre-pay the entire $350.00 filing fee when he files his action.

IT IS ORDERED: (1) Plaintiff's Complaint (Doc. #1) and this action are dismissed pursuant to 28

U.S.C. § 1915(g) without prejudice to Plaintiff filing a complaint in a new case accompanied by the full $350.00 filing fee. -2-

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(2)

The Clerk of Court must enter judgment and close this case.

DATED this 12th day of September, 2008.

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