Hill v. CDCR, et al.

Filing 26

ORDER Revoking Plaintiff's in Forma Pauperis Status Under 28 USC 1915(g); ORDER Vacating Order of January 10, 2014 7 ; ORDER Requiring Plaintiff to Pay $400.00 Filing Fee in Full within Thirty Days or this Case will be Dismissed; ORDER for Clerk to Serve this Order on CDCR and Financial Department, signed by District Judge Lawrence J. O'Neill on 3/5/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY LEE HILL,

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Plaintiff,

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vs.
CDCR, et al.,

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Defendants.

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1:14-cv-00002-LJO-GSA-PC
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS UNDER
28 U.S.C. § 1915(g)
ORDER VACATING ORDER OF
JANUARY 10, 2014
(Doc. 6.)
ORDER REQUIRING PLAINTIFF TO
PAY $400.00 FILING FEE IN FULL
WITHIN THIRTY DAYS OR THIS
CASE WILL BE DISMISSED

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ORDER FOR CLERK TO SERVE THIS
ORDER ON CDCR AND FINANCIAL
DEPARTMENT

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I.

BACKGROUND

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Tony Lee Hill (“Plaintiff") is a state prisoner in the custody of the California

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Department of Corrections and Rehabilitation (CDCR), proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on January 2, 2014. (Doc. 1.)

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On January 8, 2014, Plaintiff filed an application to proceed in forma pauperis pursuant

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to 28 U.S.C. § 1915. (Doc. 5.) On January 10, 2014, the court granted Plaintiff leave to

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proceed in forma pauperis. (Doc. 7.)

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

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28 U.S.C. ' 1915 governs proceedings in forma pauperis. Section 1915(g) provides that

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A[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3
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or more prior occasions, while incarcerated or detained in any facility, brought an action or

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appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is

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under imminent danger of serious physical injury.@ 28 U.S.C. § 1915(g).

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Discussion

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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. '

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1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time

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the Complaint was filed, under imminent danger of serious physical injury.1

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The Court has reviewed Plaintiff=s Complaint and finds that Plaintiff does not meet the

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imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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Plaintiff’s Complaint arises from events beginning on September 25, 2013, in which Plaintiff

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alleges that false disciplinary charges were brought against him, resulting in a loss of good time

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credits and Plaintiff’s voluntary detention in administrative segregation for his protection.

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Plaintiff alleges that defendants have served him reduced portions of food, rotten fruit, and

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bread bitten by a rodent; denied him adequate access to the law library; denied him his

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magazines; denied him TV access; denied him hot water in his cell; subjected him to cold air

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vents in winter; and improperly processed his inmate appeals. Plaintiff fails to allege specific

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facts in the Complaint indicating he was under imminent danger at the time he filed the

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Complaint. Based on the foregoing, the court finds that Plaintiff fails to allege the imminent

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danger of serious physical injury necessary to bypass ' 1915(g)'s restriction on his filing suit

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without prepayment of the filing fee.

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Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must

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submit the appropriate filing fee in order to proceed with this action. Plaintiff’s in forma

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The Court takes judicial notice of the following cases which count as strikes: 1) Hill v. Williams, et al.,
2:98-cv-07173-LGB-CT (C.D. Cal.) (dismissed September 15, 1998 for failure to state a claim); 2) Hill v.
Wallace, et al., 2:99-cv-06406-ABC-CT (C.D. Cal.) (dismissed July 7, 1999 for failure to state a claim; (3) Hill v.
Torrance Police Dept., et al., 2:11-cv-08794-UA-CW (C.D. Cal.) (dismissed July 20, 2012 for failure to state a
claim); and (4) Hill v. Horton, et al., 2:13-cv-00805-UA-CW (C.D. Cal.) (dismissed February 28, 2013 for failure
to state a claim.
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pauperis status shall be revoked, and Plaintiff shall be required to pay the $400.00 filing fee in

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full within thirty days.2

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III.

CONCLUSION

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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 in forma pauperis status is
REVOKED;

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The court’s order entered on January 10, 2014, which granted Plaintiff leave to

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proceed in forma pauperis and directed the CDCR to make payments for the

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filing fee from Plaintiff’s prison trust account, is VACATED;

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3.

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thirty days of the date of service of this order;
4.

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Plaintiff is required to pay the $400.00 filing fee for this action in full within

Plaintiff’s failure to pay the filing fee pursuant to this order shall result in the
dismissal of this case; and

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The Clerk is directed to serve a copy of this order on:
(1)

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the Director of the CDCR, via the court's electronic case filing system
(CM/ECF), and

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(2)

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

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 5, 2014

UNITED STATES DISTRICT JUDGE

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To date, the court has not received any payment for Plaintiff’s filing fee in this case. (Court Financial
Records.) The filing fee for this action is $350.00 plus a $50.00 administrative fee. 28 U.S.C. § 1914. The $50.00
administrative fee does not apply to persons granted in forma pauperis status. Id. Therefore, Plaintiff now owes a
$400.00 filing fee.
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