West v. Yates

Filing 28

ORDER to SHOW CAUSE signed by Magistrate Judge William M. Wunderlich on 4/7/2009. Show Cause Response due by 5/11/2009.(Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Plaintiff, an inmate in the custody of the California Department of Corrections and High Desert State Prison, brings this civil rights action against the Warden at Pleasant Valley State Prison. This action proceeds on the March 17, 2009, first amended complaint. Plaintiff claims that he was subjected to inadequate medical care. Plaintiff also asserts other, vague, factual allegations. The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated JAMES YATES, Defendant. vs. JOHN E. WEST, Plaintiff, 1:07 CV 0551 OWW WMW P ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury." 28 U.S.C. § 1915(g). This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Among the dismissals suffered by plaintiff that count as

strikes under 1915(g) are: West v. Climites, No 1:02-cv-6437-REC WMW PC; West v. Yates, et al., No. 1:05-cv-1554 OWW SMS PC; West v. Lamarque et al., No. 1:06-cv-0628-LJO-WMW PC. Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges facts indicating imminent danger of serious injury. Plaintiff alleges no such facts in this case. Accordingly, IT IS ORDERED that Plaintiff show cause, within thirty days, why he should not be denied leave to proceed in forma pauperis and directed to pay the filing fee in full. IT IS SO ORDERED.

15 16 17 18 19 20 21 22 23 24 25 26 2 Dated: April 7, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE