Dynes v. Rodriguez et al

Filing 9

ORDER REVOKING Plaintiff's In Forma Pauperis Status Under 28 U.S.C. 1915(G); ORDER VACATING 4 Order Directing CDCR to Collect Filing Fee Payments for this Action; and ORDER DISMISSING ACTION, Without Prejudice to Refiling With Submission of $400 Filing Fee in Full signed by Magistrate Judge Gary S. Austin on 7/3/2014. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN RAY DYNES, 11 Plaintiff, 12 13 vs. DEPUTY RODRIGUEZ, et al., 14 Defendants. 15 1:14-cv-00440 GSA PC ORDER REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) ORDER VACATING ORDER OF APRIL 3, 2014 (ECN No. 4.) ORDER VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE PAYMENTS FOR THIS ACTION 16 17 19 ORDER DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400 FILING FEE IN FULL (ECF No. 1.) 20 ORDER FOR CLERK TO CLOSE CASE 18 21 22 I. BACKGROUND 23 Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 24 U.S.C. ' 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 25 636(c).1 Plaintiff filed the Complaint commencing this action on March 27, 2014. On the 26 27 28 1 Plaintiff filed a consent to proceed before a magistrate judge on April 21, 2014 (ECF No. 5). 1 1 same date, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 2 1915. On April 3, 2014, the Court granted Plaintiff leave to proceed in forma pauperis. 3 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 4 28 U.S.C. ' 1915 governs proceedings in forma pauperis. Section 1915(g) provides that 5 A[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 6 or more prior occasions, while incarcerated or detained in any facility, brought an action or 7 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 8 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 9 under imminent danger of serious physical injury.@ 10 A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. ' 11 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time 12 the complaint was filed, under imminent danger of serious physical injury.2 13 The Court has reviewed Plaintiff=s Complaint and finds that Plaintiff does not meet the 14 imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 15 The gravamen of Plaintiff’s Complaint is that while he was housed at the Fresno County Jail, 16 he was subjected to a single instance of excessive force and that jail officials failed to provide 17 adequate medical care. Plaintiff failed to allege any facts indicating any future harm or 18 imminent danger. 19 Plaintiff fails to allege facts sufficient to demonstrate that he was under actual threat of 20 harm. Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must submit 21 the appropriate filing fee in order to proceed with this action. Plaintiff’s in forma pauperis 22 status shall be revoked, and this action shall be dismissed, without prejudice to refiling with the 23 submission of the $400.00 filing fee in full. 24 Based on the foregoing, it is HEREBY ORDERED that: 25 26 27 28 2 The Court takes judicial notice of the following cases which count as strikes: 1) Dynes v. Kern County Superior Court, 1:07-cv-01599 AWI TAG (E.D. Cal.) (dismissed January 18, 2008 for failure to state a claim); 2) Dynes v. Fresno County Superior Court, 1:07-cv-01659 AWI BLD (E.D. Cal.) (dismissed April 14, 2008 for failure to state a claim; and 3) Dynes v. Garcia,2:11-cv-01682 ROS LOA (D. Arizl.) (dismissed September 30, 2011for failure to state a claim). 2 1 1. 2 3 REVOKED; 2. 4 5 The court’s order entered on April 3, 2014, which granted Plaintiff leave to proceed in forma pauperis, is VACATED; 3. 6 7 Pursuant to 28 U.S.C. ' 1915(g), Plaintiff’s in forma pauperis status is This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and 4. The Clerk is directed to CLOSE this case. 8 9 10 11 IT IS SO ORDERED. Dated: July 3, 2014 /s/ Gary S. Austin 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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