Hubbard v. Gipson et al

Filing 6

ORDER Revoking Plaintiff's in Forma Pauperis Status under 28 USC 1915(g); ORDER Vacating Order of May 28, 2014; ORDER Dismissing Action without Prejudice to Re-Filing with Payment of $400.00 Filing Fee in Full; ORDER for Clerk to Serve this Order on CDCR and Financial Department, signed by Magistrate Judge Dennis L. Beck on 1/30/15. CASE CLOSED. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, 12 Plaintiff, 13 v. ORDER REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) ORDER VACATING ORDER OF MAY 28, 2014 (ECF No. 4) 14 15 M. GIPSON, et al., 16 Defendants. 17 Case No. 1:14-cv-00748 DLB PC ORDER DISMISSING ACTION WITHOUT PREJUDICE TO RE-FILING WITH PAYMENT OF $400.00 FILING FEE IN FULL ORDER FOR CLERK TO SERVE THIS ORDER ON CDCR AND FINANCIAL DEPARTMENT 18 19 20 Plaintiff Zane Hubbard (“Plaintiff”), a state prisoner proceeding pro se and in forma 21 22 23 24 pauperis, filed this civil rights action on May 19, 2014.1 On May 28, 2014, the Court granted Plaintiff’s application to proceed in forma pauperis. A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 28 U.S.C. ' 1915 governs proceedings in forma pauperis. Section 1915(g) provides that A[i]n 25 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 26 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 27 28 1 On June 9, 2014, Plaintiff consented to the jurisdiction of the Magistrate Judge. 1 1 2 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 3 physical injury.@ 28 U.S.C. § 1915(g). 4 B. 5 DISCUSSION A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. ' 1915(g) and 6 is precluded from proceeding in forma pauperis unless he was, at the time the Complaint was filed, 7 under imminent danger of serious physical injury.2 8 The Court has reviewed Plaintiff=s Complaint and finds that he does not meet the imminent 9 danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff names 10 as Defendants: Correctional Officers M. Gipson, M. Gonzalez, D. Gonzalez, Perez, De Ochoa, and 11 Sgt. Aceves; Bakersfield Police Officers Urbery, Beagley, and Bender; Kern County Sheriff 12 Deputies Ashley, Jennings, Gilmoore, Peatris, Miller, and Hall; Nurse Woods; and Television News 13 14 15 16 Reporter Graciela Moreno. Plaintiff complains that all Defendants continue to threaten to kidnap him, rape him, extort him, sodomize him, and request that he become a prison gang member. He complains that they are attempting to intimidate him because he is a Mexican gang member with tattoos. He alleges they are attempting to make him a homosexual. He claims he is falsely convicted and falsely confined. 17 Plaintiff fails to allege specific facts in the Complaint indicating that he was under imminent 18 19 20 21 22 danger at the time he filed the complaint. Plaintiff makes sweeping, implausible claims without any foundation. Based on the foregoing, the Court finds that Plaintiff fails to allege the imminent danger of serious physical injury necessary to bypass ' 1915(g)’s restriction on filing suit without prepayment of the filing fee. Accordingly, Plaintiff may not proceed in forma pauperis in this action. Plaintiff’s in forma 23 pauperis status shall be revoked, and the case will be dismissed without prejudice to Plaintiff refiling 24 with full payment of the $400.00 filing fee.3 25 26 27 28 2 The Court takes judicial notice of the following cases which count as strikes: 1:13-cv-00761-MJS-PC (ED Cal.) Hubbard v. CDCR, et al. (dismissed on 08/30/2013 for failure to state a claim); 1:13-cv-01078-LJO-MJS-PC (ED Cal.) Hubbard v. Mendes, et al. (dismissed on 03/17/2014 for failure to state a claim); and 1:14-cv-00351-LJO-SAB-PC (ED Cal.) Hubbard v. Lua, et al. (dismissed on 05/06/2014 for failure to state a claim) 2 1 2 C. CONCLUSION Based on the foregoing, it is HEREBY ORDERED that: 3 1. Pursuant to 28 U.S.C. ' 1915(g), Plaintiff’s in forma pauperis status is REVOKED; 4 2. The Court’s order entered on May 28, 2014, which granted Plaintiff leave to proceed 5 in forma pauperis and directed the CDCR to make payments for the filing fee from 6 Plaintiff’s prison trust account, is VACATED; 7 3. payment of the $400.00 filing fee; 8 9 The case is DISMISSED, without prejudice, to Plaintiff re-filing the action with full 4. The Clerk is directed to serve a copy of this order on: (1) 10 (CM/ECF), and 11 (2) 12 the Financial Department, U.S. District Court, Eastern District of California, Fresno Division. 13 14 the Director of the CDCR, via the Court’s electronic case filing system IT IS SO ORDERED. 15 16 Dated: /s/ Dennis January 30, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3 To date, the Court has not received any payment for Plaintiff’s filing fee in this case. 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. 3

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