Elmore v. Griffith et al

Filing 9

ORDER to SHOW CAUSE Regarding Three Strikes Pursuant to 28 U.S.C. §1915(g), signed by Magistrate Judge Gerald B. Cohn on 9/24/12: Plaintiff SHALL SHOW CAUSE within thirty (30) days from the date of service of this order. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TONIE ELMORE, 10 Plaintiff, 11 12 CASE NO: 1:12-cv-00208-GBC (PC) ORDER TO SHOW CAUSE REGARDING THREE STRIKES PURSUANT TO 28 U.S.C. § 1915(g) v. L. GRIFFITH, et al., 13 Defendants. 14 / 15 I. Procedural History 16 Tonie Elmore (“Plaintiff”), is a state prisoner proceeding pro se and in forma pauperis 17 (“IFP”). Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 14, 2012. 18 Doc.1. On March 23, 2012, the Court granted Plaintiff’s motion to proceed in forma pauperis. Doc. 19 7. 20 II. Three Strikes 21 A review of the record of actions filed by Plaintiff in the United States District Court reveals 22 that Plaintiff filed three or more actions that were dismissed as frivolous, malicious or for failing to 23 state a claim upon which relief may be granted. Section 1915 of Title 28 of the United States Code 24 governs proceedings in forma pauperis. Section 1915(g) provides that: 25 26 27 [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. 28 1 1 28 U.S.C. § 1915(g).1 “In some instances, the district court docket records may be sufficient to show 2 that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a 3 strike.” Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). However, where the docket records 4 do not reflect the basis for the dismissal, the Court should conduct a “careful examination of the 5 order dismissing an action, and other relevant information,” to determine if, in fact, “the action was 6 dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 7 1113, 1121 (9th Cir. 2005). 8 After careful review, the Court finds the following cases count as strikes for being malicious 9 and frivolous: 1) Elmore v. Lamarque, 3:00-cv-02269-CRB at Doc. 3, 2000 WL 1677958 (N.D. Cal. 10 November 2, 2000) (failure to state a claim); 2) Elmore v. Salinas Valley State Prison State Prison, 11 3:00-cv-02929-CRB at Doc. 2 (N.D. Cal. August 25, 2000) (failure to state a claim); and 3) Elmore 12 v. Clark, et al., No. 3:00-cv-01275-CRB at Doc. 3 (N.D. Cal. August 25, 2011) (failure to state a 13 claim). The Court notes that courts in Elmore v. Castro, et al., 1:11-cv-02143-GSA at Doc. 11 14 (August 23, 2012); Elmore v. Reitz, No. 3:02-cv-03986, 2002 WL 2022758 (August 29, 2002) and 15 Elmore v. Brandon, et al., No. 3:00-cv-2361, 2000 U.S. Dist. Lexis 17686 (November 13, 2000) 16 have previously determined that Plaintiff has accumulated three strikes. 17 Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff 18 filed this action on February 14, 2012. Additionally, the Court finds that Plaintiff’s Eighth 19 Amendment medical claim stemming from pain in the head of his penis and inability to ejaculate 20 after self stimulation does not fall within the imminent danger exception. See Andrews v. Cervantes, 21 493 F.3d 1047, 1056-57 (9th Cir. 2007). 22 /// 23 /// 24 /// 25 26 27 28 1 “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). 2 1 III. Conclusion 2 Because it appears that the Plaintiff has on three or more prior occasions brought civil actions 3 that have been dismissed as frivolous or for failure to state a claim, the Court HEREBY ORDERS: 4 Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date of service of this order why the 5 abovementioned actions do not count as “strikes” under 28 U.S.C. § 1915(g) and why Plaintiff’s in 6 forma pauperis status should not be revoked to allow Plaintiff to submit the entire balance of the 7 $350.00 filing fee. 8 9 IT IS SO ORDERED. 10 11 Dated: 0jh02o September 24, 2012 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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