Cramer v. Wittman et al

Filing 3

ORDER DISMISSING ACTION, Without Prejudice, Pursuant to 28 U.S.C. 1915(G) and Directing Clerk of Court to Enter Judgment, signed by District Judge Lawrence J. O'Neill on 3/29/2013. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MATTHEW B. CRAMER,

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CASE NO. 1:13-cv-00451-LJO-SKO PC

Plaintiff,

ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, PURSUANT TO 28 U.S.C. §
1915(G) AND DIRECTING CLERK OF
COURT TO ENTER JUDGMENT

v.
BILL WITTMAN, et al.,

(Doc. 1)
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Defendants.
/

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Plaintiff Matthew B. Cramer, a prisoner proceeding pro se, filed this civil rights action
pursuant to 42 U.S.C. § 1983 on March 28, 2013.

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Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while

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incarcerated or detained in any facility, brought an action or appeal in a court of the United States

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

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relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”

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The Court takes judicial notice of the following Eastern District of California cases: Cramer

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v. Schwarzenegger, case number 1:08-cv-01310-GSA (dismissed Apr. 29, 2009, for failure to state

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a claim; no appeal filed); Cramer v. Calif. Dep’t of Justice, 2:00-cv-02374-DFL-DAD (dismissed

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Sept. 26, 2001, for failure to state a claim and frivolous; no appeal filed); and Cramer v. Ty Warner,

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Inc., 2:00-mc-00099-FCD-GGH (dismissed Jul. 26, 2001, for failure to state a claim; no appeal

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filed). Accordingly, prior to the date he filed this action, Plaintiff had at least three strikes under

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section 1915(g), Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011) (dismissals must be
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final before they count as strikes), and he is precluded from proceeding in forma pauperis unless, at

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the time he filed suit, he was in imminent danger of serious physical injury, Andrews v. Cervantes,

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493 F.3d 1047, 1053 (9th Cir. 2007).

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The Court has reviewed the complaint filed in this action and it does not involve imminent

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danger of serious physical injury to Plaintiff. Andrews, 493 F.3d at 1055-56. Plaintiff’s claims arise

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of the alleged violation of the Eighth Amendment of the United States Constitution and relate to

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medical care issues at Bob Wiley Detention Facility in Tulare, California. However, because

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Plaintiff is not in imminent danger of serious physical injury, he is not entitled to proceed in forma

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pauperis. Plaintiff must pay the filing fee if he wishes to litigate these claims.

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Accordingly, the Court HEREBY ORDERS as follows: Plaintiff is ineligible to proceed in

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forma pauperis in this action pursuant to 28 U.S.C. § 1915(g) and this action is DISMISSED,

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without prejudice to refiling accompanied by the $350.00 filing fee. The Clerk of the Court shall

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enter judgment.

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IT IS SO ORDERED.

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Dated:

March 29, 2013

/s/ Lawrence J. O'Neill
B2e55c
UNITED STATES DISTRICT JUDGE

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