Medley v. Rubio et al

Filing 5

ORDER denying 2 Plaintiff's Motion for Leave to Proceed in forma pauperis. Plaintiff's Complaint 1 and this action are dismissed without prejudice, pursuant to 28:1915(g). The Clerk of Court must enter judgment accordingly and close this case. Signed by Judge G Murray Snow on 7/6/11.(TLJ)

1

WO

MDR

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Laura L. Medley,
Plaintiff,

10
11

vs.

12

CO II Rubio,
Defendant.

13

)
)
)
)
)
)
)
)
)
)

No. CV 11-1315-PHX-GMS (DKD)
ORDER

14
15

On July 1, 2011, Plaintiff Laura L. Medley, who is confined in the Arizona State

16

Prison Complex-Perryville in Goodyear, Arizona, filed a pro se civil rights Complaint

17

pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis

18

(Doc. 2).

19

I.

A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis

20
21
22
23
24

“Three Strikes Provision” of 28 U.S.C. § 1915(g).

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.

25
28 U.S.C. § 1915(g).
26
“[Section] 1915(g) should be used to deny a prisoner’s IFP status only when, after
27
careful evaluation of the order dismissing an action, and other relevant information, the
28

1

district court determines that the action was dismissed because it was frivolous, malicious

2

or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “In some

3

instances, the district court docket records may be sufficient to show that a prior dismissal

4

satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at

5

1120.
At least three of Plaintiff’s prior lawsuits qualify as “strikes” under § 1915(g):

6
7

(1)

Medley v. Maricopa County Superior Court, 01-CV-2130-PHXMHM (DKD) (Nov. 21, 2001 Order dismissing for failure to
state a claim);

(2)

Medley v. Arpaio, 08-CV-101-PHX-MHM (DKD) (Feb. 21,
2008 Order dismissing for failure to state a claim); and

(3)

Medley v. Overton, 08-CV-590-PHX-MHM (DKD) (May 8,
2008 Order dismissing for failure to state a claim).1

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Therefore, Plaintiff may not bring a civil action without complete prepayment of the $350.00
filing fee unless she is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
II.

Imminent Danger
A plaintiff who has three or more strikes may not bring a civil action without complete

prepayment of the $350.00 filing fee unless she is in imminent danger of serious physical
injury. 28 U.S.C. § 1915(g). To meet the “imminent danger” requirement, the “threat or
prison condition [must be] real and proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003) (quoting Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations
must be “specific or credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001).
Plaintiff alleges that she has received death threats, but does not allege that she is in
imminent danger of serious physical injury, nor do her allegations support such a finding.2

23
24
25
26
27
28

1

The Court identified these strikes in a November 5, 2010 Order to Show Cause in
Medley v. Arizona, 10-CV-1971-PHX-MHM (DKD). In the Order to Show Cause, the Court
gave Plaintiff 30 days to show cause why the dismissals of her prior lawsuits should not
prevent her from proceeding in forma pauperis. Plaintiff did not respond to the Order to
Show Cause.
2

Moreover, her allegation that she was told to “drop the lawsuit or you’re dead” is
insufficient to state a claim. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)
-2-

1

Thus, the Court will deny the Application to Proceed and will dismiss without prejudice

2

Plaintiff’s Complaint and this action, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to

3

reassert these claims in the future, she must prepay the entire $350.00 filing fee when she

4

files her action.

5

IT IS ORDERED:

6

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied.

7

(2)

Plaintiff’s Complaint (Doc. 1) and this action are dismissed without

8

prejudice, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert these claims in the

9

future, she must prepay the entire $350.00 filing fee when she files his action.

10

(3)

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

11

DATED this 6th day of July, 2011.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(defendants’ threats of bodily harm to convince plaintiff not to pursue legal redress were
insufficient to state a claim under § 1983; “it trivializes the eighth amendment to believe a
threat constitutes a constitutional wrong”).
-3-