Elmore v. Griffith et al

Filing 10

ORDER Revoking IFP Status Pursuant to Section 1915(g) re 7 Order, signed by Magistrate Judge Gerald B. Cohn on 10/29/12. Thirty Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TONIE ELMORE,

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CASE NO: 1:12-cv-00208-GBC (PC)
Plaintiff,

ORDER REVOKING IFP STATUS
PURSUANT SECTION 1915(g)

v.
(Doc. 9)

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L. GRIFFITH, et al.,

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Defendants.
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I.

Procedural History

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Tonie Elmore (“Plaintiff”), is a state prisoner proceeding pro se and in forma pauperis
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(“IFP”). Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on Feburary, 14, 2012.
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Doc.1. On March 23, 2012, the Court granted Plaintiff’s motion to proceed in forma pauperis. Doc.
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7. On September 24, 2012, the Court issued an order to show cause as to why Plaintiff’s IFP status
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should not be revoked pursuant to 28 U.S.C. 1915(g). Doc. 9. Over thirty days has passed and
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Plaintiff has failed to file a timely response.
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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,
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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 “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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After careful review, the Court finds the following cases count as strikes for being malicious

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and frivolous: 1) Elmore v. Lamarque, 3:00-cv-02269-CRB at Doc. 3, 2000 WL 1677958 (N.D. Cal.

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November 2, 2000) (failure to state a claim); 2) Elmore v. Salinas Valley State Prison State Prison,

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3:00-cv-02929-CRB at Doc. 2 (N.D. Cal. August 25, 2000) (failure to state a claim); and 3) Elmore

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v. Clark, et al., No. 3:00-cv-01275-CRB at Doc. 3 (N.D. Cal. August 25, 2011) (failure to state a

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claim). The Court notes that courts in Elmore v. Castro, et al., 1:11-cv-02143-GSA at Doc. 11

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(August 23, 2012); Elmore v. Reitz, No. 3:02-cv-03986, 2002 WL 2022758 (August 29, 2002) and

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Elmore v. Brandon, et al., No. 3:00-cv-2361, 2000 U.S. Dist. Lexis 17686 (November 13, 2000)

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have previously determined that Plaintiff has accumulated three strikes. Moreover, Plaintiff does

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not allege that he faced imminent danger of serious physical injury at the time he filed his

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complaint.2

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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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Plaintiff’s allegations regarding inability to ejaculate after self stimulation does not fall within the
imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).

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III.

Conclusion and Order

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Based on the foregoing, the Court HEREBY ORDERS:

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1.

To REVOKE Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g);

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2.

To VACATE the Court’s order on March 23, 2012, directing the Director of the

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California Department of Corrections and Rehabilitation or his designee to deduct

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the $350.00 filing fee from Plaintiff’s trust account whenever the balance exceeds

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$10.00;

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That the Clerk of the Court to serve a copy of this order on (1) the Financial

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Department, U.S. District Court, Eastern District of California, Fresno Division and

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(2) the Director of the California Department of Corrections and Rehabilitation via

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the court's electronic case filing system (CM/ECF); and

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4.

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That Plaintiff pay the $350.00 filing fee in full within thirty (30) days or this action
would be dismissed, without prejudice.

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IT IS SO ORDERED.

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Dated:
0jh02o

October 29, 2012
UNITED STATES MAGISTRATE JUDGE

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