Evans v. Martin et al

Filing 7

ORDER Denying Application to Proceed In Forma Pauperis and Dismissing Action, Without Prejudice to Refiling With Submission of $350.00 Filing Fee in Full re 5 ; ORDER for Clerk to Close Case, signed by Magistrate Judge Gerald B. Cohn on 7/12/12. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES EVANS, JR.,

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CASE NO: 1:12-cv-00174-GBC (PC)
Plaintiff,

Defendants.

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ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION, WITHOUT
PREJUDICE TO REFILING WITH
SUBMISSION OF $350.00 FILING FEE
IN FULL
(Doc. 5.)

v.
C. C. MARTIN, et al.,

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ORDER FOR CLERK TO CLOSE CASE
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I.

Procedural History

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Plaintiff James Evans Jr. (“Plaintiff”), is a state prisoner proceeding pro se. On February 7,
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2012, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On February 29,
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2012, Plaintiff filed an application to proceed in forma pauperis. Doc. 5.
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II.

Three Strikes

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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 three or more actions that were dismissed as frivolous, malicious or for failing to
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state 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 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
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be granted, unless the prisoner is under imminent danger of serious physical injury.

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28 U.S.C. § 1915(g).1 “In some instances, the district court docket records may be sufficient to show

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that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a

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strike.” Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). However, where the docket records

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do not reflect the basis for the dismissal, the Court should conduct a “careful examination of the

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order dismissing an action, and other relevant information,” to determine if, in fact, “the action was

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dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d

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1113, 1121 (9th Cir. 2005).

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The Court takes judicial notice that the Plaintiff has three prior actions dismissed under Heck

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v. Humphrey, 512 U.S. 477 (1994) for not stating a cognizable claim under section 1983: 1) Evans

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v. McDonald, et al., 2:09-cv-00291-FCD-CMK at Doc. 10, Doc. 12 (E.D. Cal.) (dismissed May 21,

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2009, for failure to state a claim under Heck); 2) Evans v. Supreme Court of California, et al., 2:10-

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cv-00421-UA-RC at Doc. 10 (C.N. Cal.) (dismissed April 25, 2011, for failure to state a claim under

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Heck); and 3) Evans v. Court of Appeals, Sixth Appellate District, et al., 4:11-cv-00154-SBA at Doc.

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13 (dismissed November 9, 2011, for failure to state a claim under Heck).

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The Court finds that a dismissal pursuant to Heck counts as a strike under 28 U.S.C. §

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1915(g). The Supreme Court in Heck stated its ruling was based on a denial of “the existence of a

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cause of action.” Heck, 512 U.S. at 489. Additionally, several other courts have held that dismissals

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under Heck count as strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99,

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102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule in Heck is legally frivolous.”);

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Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck, the complaint was properly

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dismissed for failure to state a claim.”).

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Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff

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filed this action on February 7, 2012. The Court has reviewed Plaintiff’s complaint and finds that

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Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053

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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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(9th Cir. 2007). Plaintiff alleges that on May 10, 11, and 18 of 2011, he suffered retaliatory

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deprivation of food, mail, hygiene products and showers. Doc. 1 at 2. Because Plaintiff’s complaint

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is devoid of any showing that Plaintiff was under imminent danger of serious physical injury at the

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time he filed the complaint, Plaintiff is ineligible to proceed in forma pauperis in this action.

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III.

Conclusion and Order

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Plaintiff may not proceed in forma pauperis in this action. Therefore, Plaintiff’s application

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to proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice

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to refiling with the submission of the $350.00 filing fee in full.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma pauperis
in this action is denied (Doc. 5);

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2.

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This action is DISMISSED, without prejudice to refiling with the submission of the
$350.00 filing fee in full; and

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3.

The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
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Dated:
0jh02o

July 12, 2012
UNITED STATES MAGISTRATE JUDGE

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