Stepter v. Avenal State Prison et al

Filing 9

ORDER Denying Plaintiff's Motion To Proceed IFP Pursuant Section 1915(g) And Dismissing Action Without Prejudice (Doc. 1 ; Doc. 2 ), signed by Chief Judge Anthony W. Ishii on 2/4/2012. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JORDACHE STEPTER,

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CASE NO: 1:11-cv-01906-GBC (PC)

Plaintiff,

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

v.
AVENAL STATE PRISON, et al.,

Doc. 1; Doc. 2
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Defendants.
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/

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I.

Procedural History

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Plaintiff Jordache Stepter (“Plaintiff”), is a state prisoner proceeding pro se. On November
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10, 2011, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 and motioned to proceed
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IFP. Doc. 1; Doc. 2.
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II.

Three Strikes

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A review of the record of actions and appeals filed by Plaintiff in the United States District
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Court reveals that Plaintiff filed has three actions that were dismissed as frivolous, malicious or for
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failing to state a claim upon which relief may be granted. Section 1915 of Title 28 of the United
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States Code 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 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).1 Determining whether Plaintiff’s actions count as strikes under section 1915(g)

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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 v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

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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, at Doc. 10, 11 (dismissed March 12, 2009, for failure to

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state a claim); 2) Stepter v. Childs, et al., 1:07-cv-01528-OWW-GSA, at Doc. 15, 16 (dismissed June

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13, 2008, for failure to state a claim); and 3) Stepter v. Chavon Parks, 2:11-cv-08802-UA-MLG, at

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Doc. 6 (dismissed November 2, 2011, for failure to state a claim).

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

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on November 28, 2011. Moreover, Plaintiff does not demonstrate that he faced imminent danger

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of 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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III.

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Based on the foregoing, the Court HEREBY ORDERS:

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Conclusion and Order

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2011, (Doc. 2) is DENIED pursuant to 28 U.S.C. § 1915(g); and

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That Plaintiff’s motion to proceed in forma pauperis filed November 10,

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That this action is DISMISSED without prejudice (Doc. 1).

IT IS SO ORDERED.

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Dated:
0m8i78

February 4, 2012
CHIEF 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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