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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN RAY DYNES,

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Plaintiff,

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vs.
DEPUTY RODRIGUEZ, et al.,

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Defendants.

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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

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE TO REFILING WITH
SUBMISSION OF $400 FILING FEE IN
FULL
(ECF No. 1.)

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ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42

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U.S.C. ' 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. §

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636(c).1

Plaintiff filed the Complaint commencing this action on March 27, 2014. On the

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Plaintiff filed a consent to proceed before a magistrate judge on April 21, 2014 (ECF No. 5).
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same date, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. On April 3, 2014, the Court granted Plaintiff leave to proceed in forma pauperis.

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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.@

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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.2

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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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The gravamen of Plaintiff’s Complaint is that while he was housed at the Fresno County Jail,

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he was subjected to a single instance of excessive force and that jail officials failed to provide

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adequate medical care. Plaintiff failed to allege any facts indicating any future harm or

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imminent danger.

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Plaintiff fails to allege facts sufficient to demonstrate that he was under actual threat of

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

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

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status shall be revoked, and this action shall be dismissed, without prejudice to refiling with the

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submission of the $400.00 filing fee in full.

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Based on the foregoing, it is HEREBY ORDERED that:

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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).
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REVOKED;
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The court’s order entered on April 3, 2014, which granted Plaintiff leave to
proceed in forma pauperis, is VACATED;

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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

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

July 3, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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