Hackett v. City of Fresno Fax Area Express, et al.

Filing 3

ORDER DISMISSING 1 Action without Prejudice, Clerk to CLOSE CASE signed by District Judge Lawrence J. O'Neill on 8/8/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC LEE HACKETT,
Plaintiff,

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CASE NO. 1:11-cv-01295-LJO-GBC (PC)
ORDER DISMISSING ACTION WITHOUT
PREJUDICE

v.
(ECF No. 1)
CITY OF FRESNO FAX AREA EXPRESS,
et al.,
CLERK TO CLOSE CASE

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Defendants.
/

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ORDER
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Plaintiff Eric Lee Hackett, a state prisoner proceeding pro se, filed this civil rights
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action pursuant to 42 U.S.C. § 1983 on August 5, 2011. (ECF No. 1.) This action
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proceeds on Plaintiff’s Complaint, which has not yet been screened by this Court. No other
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parties have appeared.
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After a review of the record of actions filed by Plaintiff in the United States District
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Court, it was revealed that Plaintiff has filed three or more actions that were dismissed for
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failure to state a claim upon which relief may be granted: Hackett v. Taylor, 1:01-cv-0607623
OWW-SMS (E.D. Cal.) (Dismissed 08/22/2002 for failure to state a claim); Hackett v.
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Taylor, 1:02-cv-05440-OWW-SMS (E.D. Cal.) (Dismissed 08/23/2002 for failure to state a
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claim); Hackett v. Schwarzenegger, 1:04-cv-05124-OWW-SMS (Dismissed 08/04/2005 for
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failure to state a claim); Hackett v. City of Fresno, 1:06-cv-01123-OWW-SMS (E.D. Cal.)
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(Dismissed 11/16/2006 for failure to state a claim). This subjects him to Section 1915(g)’s
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three strike rule.1 See also Hackett v. City of Fresno Fax Area Bus, 1:09-cv-00140-OWW-

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GSA (E.D. Cal.) (Dismissed 10/23/2009; Court determined that Plaintiff was not eligible to

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proceed in forma pauperis pursuant to Section 1915 because he was a three-striker).

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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . .

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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or

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detained in any facility, brought an action or appeal in a court of the United States that was

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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

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relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” Plaintiff is subject to section 1915(g) and is precluded from proceeding in forma

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pauperis unless he is, at the time the complaint is filed, under imminent danger of serious

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physical injury.

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The Court has reviewed Plaintiff’s Complaint and finds that Plaintiff does not meet

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the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007). Because Plaintiff alleges no facts supporting a finding that he is under imminent

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danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this

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action.

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Accordingly, it is HEREBY ORDERED that:

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1.

This action is DISMISSED WITHOUT PREJUDICE to refiling with the
submission of the $350.00 filing fee in full; and

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2.

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Clerk to close case.

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IT IS SO ORDERED.

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Dated:
b9ed48

August 8, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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“This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or
appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were]
frivolous, malicious, or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g),
a prisoner with three strikes or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d
1113, 1116 n.1 (9th Cir. 2005).

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