Stepter v. Jepsen et al

Filing 5

ORDER DENYING 2 Plaintiff's Motion to Proceed In Forma Pauperis Pursuant to Section 1915(g) and DISMISSING Action Without Prejudice, signed by Magistrate Judge Gerald B. Cohn on 12/22/2011. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORDACHE STEPTER,

CASE NO: 1:11-cv-01905-GBC (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS
PURSUANT TO SECTION 1915(g) AND
DISMISSING ACTION WITHOUT
PREJUDICE

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v.
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AVENAL STATE PRISON, et al.,
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Defendants.
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Docs. 1 & 2
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On November 16, 2011, Plaintiff Jordache Stepter (“Plaintiff”), a state prisoner proceeding

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pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 and filed a motion to proceed in

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forma pauperis. Docs. 1 & 2.

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A review of the record of actions filed by Plaintiff in the United States District Court reveals

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that Plaintiff filed has three actions that were dismissed as frivolous, malicious, or for failing to state

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a claim upon which relief may be granted. Section 1915 of Title 28 of the United States Code

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governs proceedings in forma pauperis. Section 1915(g) provides that:

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[I]n no event shall a prisoner bring a civil action . . . under this section if the prisoner
has, on three 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).1 Determining whether Plaintiff’s actions count as strikes under section 1915(g)

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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[ed] 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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requires the Court to conduct a “careful examination of the order dismissing an action, and other

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relevant information,” to determine if, in fact, “the action was dismissed because it was frivolous,

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malicious or failed to state a claim.” Andrews, 398 F.3d 1113 at 1121.

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The Court takes judicial notice of the following cases which counts as strikes: 1) Stepter v.

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Childs, et al., 1:07-cv-01365-AWI-GSA (E.D. Cal.), Doc. 10 (dismissed March 12, 2009, for failure

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to state a claim); 2) Stepter v. Childs, et al., 1:07-cv-01528-OWW-GSA (E.D. Cal.), Doc. 15

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(dismissed June 13, 2008, for failure to state a claim); and 3) Stepter v. Chavon Parks,

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2:11-cv-08802-UA-MLG (E.D. Cal.), Doc. 6 (dismissed November 2, 2011, for failure to state a

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claim).

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Plaintiff has three or more strikes which occurred before Plaintiff filed this action on

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November 16, 2011. Moreover, Plaintiff does not demonstrate that he faced imminent danger of

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serious physical injury at the time he filed his complaint. Therefore, the Court finds that Plaintiff

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should be precluded from proceeding in forma pauperis and dismissal of Plaintiff’s action is

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appropriate. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (finding that denial of in

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forma pauperis status under § 1915(g) mandated dismissal since a prisoner must pay the filing fee

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at the time of initiating the suit).

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Based on the foregoing, the Court HEREBY ORDERS:

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1.

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U.S.C. § 1915(g); and

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Plaintiff’s motion to proceed in forma pauperis is DENIED pursuant to 28

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This action is DISMISSED without prejudice.

IT IS SO ORDERED.

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Dated:
0jh02o

December 22, 2011
UNITED STATES MAGISTRATE JUDGE

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