Caraffa v. Arizona, State of et al
Filing
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ORDER: Plaintiff's Application to Proceed In Forma Pauperis (Doc. #2 ) is denied. Plaintiff's Complaint (Doc. #1 ) and this action are dismissed without prejudice, pursuant to 28 U.S.C. 1915(g). If Plaintiff wishes to reassert these claims in the future, she must prepay the entire $400.00 filing and administrative fees when she files her action. The Clerk of Court must enter judgment accordingly and close this case. (See Order for full details.) Signed by Judge Michael T Liburdi on 11/19/20.
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WO
MDR
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Alfred E. Caraffa,
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No. CV 20-02158-PHX-MTL (ESW)
Plaintiff,
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v.
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State of Arizona, et al.,
ORDER
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Defendants.
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On November 9, 2020, Plaintiff Alfred E. Caraffa,1 who is confined in a Maricopa
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County Jail, filed a pro se civil rights Complaint (Doc. 1) and an Application to Proceed In
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Forma Pauperis (Doc. 2). Pursuant to 28 U.S.C. § 1915(g), the Court will deny the
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Application to Proceed and will dismiss the Complaint and this action without prejudice.
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I.
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Dismissal Pursuant to 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis
(“IFP”) 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.
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28 U.S.C. § 1915(g).
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Plaintiff is housed in a male facility but uses feminine pronouns to refer to herself.
The Court will do the same.
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“[Section] 1915(g) should be used to deny a prisoner’s IFP status only when, after
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careful evaluation of the order dismissing an action, and other relevant information, the
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district court determines that the action was dismissed because it was frivolous, malicious
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or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “In
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some instances, the district court docket records may be sufficient to show that a prior
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dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a
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strike.” Id. at 1120.
At least three of Plaintiff’s prior actions qualify as “strikes” under § 1915(g):
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(1)
Caraffa v. Maricopa County Sheriff’s Department, CV 2000013-PHX-MTL (ESW) (Mar. 3, 2020 Order and Judgment
dismissing Second Amended Complaint for failure to state a
claim);
(2)
Caraffa v. Maricopa County Sheriff’s Office, CV 20-00227PHX-MTL (ESW) (Mar. 30, 2020 Order and Judgment
dismissing Second Amended Complaint for failure to state a
claim);
(3)
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Caraffa v. CHS, CV 20-00256-PHX-MTL (ESW) (Feb. 10,
2020 Order dismissing Complaint for failure to state a claim,
with leave to amend, and Apr. 13, 2020 Judgment for failure to
file amended complaint).
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Therefore, Plaintiff may not bring a civil action without complete prepayment of the
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$350.00 filing fee and $50.00 administrative fee unless she is in imminent danger of serious
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physical injury. 28 U.S.C. § 1915(g).
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II.
Imminent Danger
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To meet the “imminent danger” requirement, the “threat or prison condition [must
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be] real and proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting
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Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations must be “specific
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or credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). “[T]he exception
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applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent
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danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d
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1047, 1055 (9th Cir. 2007) (quoting § 1915(g)). Moreover, although a court considering a
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motion to proceed in forma pauperis, “should not attempt to evaluate the seriousness of a
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plaintiff’s claims[, . . . ] it has never been the rule that courts must blindly accept a
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prisoner’s allegations of imminent danger.” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir.
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2010).
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Plaintiff’s allegations in her six-count Complaint do not plausibly suggest she is in
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imminent danger of serious physical injury.
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Application to Proceed In Forma Pauperis and will dismiss Plaintiff’s Complaint and this
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action, without prejudice, pursuant to § 1915(g). If Plaintiff wants to reassert these claims
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in the future, she must prepay the entire $400.00 filing and administrative fees when she
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files her action.
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Thus, the Court will deny Plaintiff’s
IT IS ORDERED:
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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 without
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prejudice, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert these claims in
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the future, she must prepay the entire $400.00 filing and administrative fees when she files
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her action.
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(3)
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Dated this 19th day of November, 2020.
The Clerk of Court must enter judgment accordingly and close this case.
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