Neuendorf #147980 v. St. Joseph's Hospital 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 pursuant to 28:1915(g), without prejudice to Plaintiff 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 Senior Judge Robert C Broomfield on 3/26/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Calvin Neuendorf, II,

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Plaintiff,

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No. CV 12-2724-PHX-RCB (DKD)

vs.

ORDER

St. Joseph’s Hospital, et al.,

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Defendants.

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Plaintiff John Calvin Neuendorf, II, who is confined in the Arizona State Prison

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Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

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and an Application to Proceed In Forma Pauperis.

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I.

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

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The Prison Litigation Reform Act of 1995 (PLRA), enacted on April 26, 1996,

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provides that a prisoner may not bring a civil action or appeal a civil judgment in forma

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pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while

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incarcerated or detained in any facility, brought an action or appeal in a court of the

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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

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state a claim upon which relief may be granted, unless the prisoner is under imminent

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danger of serious physical injury.” 28 U.S.C. § 1915(g). Because § 1915(g) is a

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procedural rule that does not raise retroactivity concerns, cases that were dismissed

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before the effective date of § 1915(g), i.e., April 26, 1996, may be counted as qualifying

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dismissals or “strikes.” Tierney v. Kupers, 128 F.3d 1310, 1311 12 (9th Cir. 1997). A

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prisoner barred from proceeding in forma pauperis pursuant to § 1915(g) may proceed

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under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. Adepegba

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v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).

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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:

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(1)

Neuendorf v. Steinhillber, CV 10-724-PHX-RCB (DKD), May 5, 2010
Order of Dismissal (Doc. 5) and June 21, 2010 Judgment (Doc. 7)
dismissing the Complaint and action for failure to file an amended
complaint;

(2)

Neuendorf v. John C. Lincoln Medical, CV 10-752-PHX-RCB (DKD),
August 3, 2012 Order of Dismissal (Doc. 6) and Judgment (Doc. 8),
dismissing the Complaint and action for failure to state a claim; and

(3)

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Neuendorf v. Arizona, CV 10-2238-PHX-RCB (DKD), January 20, 2011
Order of Dismissal (Doc. 6) and Judgment (Doc. 8), dismiss the Complaint
and action for failure to state a clam.

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The Court has reviewed the Order of Dismissal in each of these cases and finds

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that the cases qualify as “strikes” under the 3-strikes provision of § 1915(g) because in

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each case, the Complaint was dismissed as frivolous or for failure to state a claim.

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Accordingly, Plaintiff may not bring a civil action without complete pre-payment of the

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$350.00 filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C.

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§ 1915(g).

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II.

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Failure to Allege Imminent Danger of Serious Physical Injury

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In this case, Plaintiff claims that he was attacked by another inmate, he was

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prescribed the wrong medication for a period of 9 months, and he is denied access to the

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courts. Plaintiff’s claims of physical harm all relate to past events. Claims concerning an

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“imminent danger of serious physical injury” cannot be triggered solely by complaints of

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past abuse. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O=Guin,

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144 F.3d 883, 884 (5th Cir. 1998); see also Luedtke v. Bertrand, 32 F. Supp. 2d 1074,
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1077 (E.D. Wis. 1999). See also Andrews, 493 F.3d at 1053, 1055 (“[T]he availability of

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the [imminent danger] exception turns on the conditions a prisoner faced at the time the

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complaint was filed, not some earlier or later time . . . . [T]he exception applies if the

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complaint makes a plausible allegation that the prisoner faced ‘imminent danger of

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serious physical injury’ at the time of filing.”). Plaintiff does not make a credible or

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coherent allegation that he is in imminent danger of serious physical injury, as required

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by 28 U.S.C. § 1915(g) to bring this action without complete pre-payment of the $350.00

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filing fee.

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prejudice pursuant to 28 U.S.C. § 1915(g) for failure to pre-pay the $350.00 filing fee. If

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Plaintiff wishes to reassert these claims in the future, he must pre-pay the entire $350.00

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filing fee at the time of filing.

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IT IS ORDERED:

Accordingly, the Complaint and this action will be dismissed without

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(1)

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

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(2)

Plaintiff’s Complaint (Doc. 1), and this action, are dismissed pursuant to 28

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U.S.C. § 1915(g), without prejudice to Plaintiff filing a complaint in a new case

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accompanied by the full $350.00 filing fee. The Clerk of Court must enter judgment and

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close this case.

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DATED this 26th day of March, 2013.

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