Johnson v. Director of Corrections et al

Filing 4

ORDER DISMISSING ACTION, Without Prejudice to Refiling With the Submission of the $400.00 Filing Fee, signed by District Judge Lawrence J. O'Neill on 7/30/2014. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC JOHNSON,

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Plaintiff,
vs.
DIRECTOR OF CORRECTIONS, et al.,

1:14-cv-01171-LJO-GSA-PC
ORDER DISMISSING ACTION,
WITHOUT PREJUDICE TO REFILING
WITH THE SUBMISSION OF THE
$400.00 FILING FEE
(Doc. 1.)

Defendants.

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Plaintiff Eric Johnson, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on July 28, 2014. (Doc. 1.) Plaintiff neither paid the $400.00

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filing fee in full nor filed an application to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. Because Plaintiff is ineligible to proceed in forma pauperis in this action, it shall be

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dismissed, without prejudice to refiling if accompanied by the filing fee.

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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . .

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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or

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

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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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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. The court has

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found evidence on the court record of three 1915(g) “strikes” against Plaintiff, which were all

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entered before this action was brought by Plaintiff on July 28, 2014.1 The Court has reviewed

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Plaintiff’s Complaint and finds that Plaintiff does not meet the imminent danger exception.2

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Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Therefore, Plaintiff is ineligible to

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proceed in forma pauperis in this action and he must submit the filing fee to proceed.

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Accordingly, this action is HEREBY DISMISSED, without prejudice to refiling with
the submission of the $400.00 filing fee.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 30, 2014

UNITED STATES DISTRICT JUDGE

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The Court takes judicial notice of case numbers 2:94-cv-01616-DFL-GGH PC Johnson v. State of
California, et al. (E.D. Cal.) (dismissed 07/26/1995 for failure to state a claim); 2:94-cv-01146-EJG-GGH PC
Johnson v. Briscoe, et al. (E.D. Cal.) (dismissed 08/17/1995 for failure to state a claim). and 2:94-cv-01925WBSGGH PC Johnson v. Bonaccorso,et al. (E.D. Cal.) (dismissed 09/08/1995 for failure to state a claim).
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The Complaint is devoid of any showing that Plaintiff was under imminent danger of serious physical
injury at the time he filed the Complaint. Id. Plaintiff alleges in the Complaint that defendants submitted a false
RVR against Plaintiff and attempted to deceive Plaintiff, subverting the disciplinary process and arbitrarily finding
him guilty. The court expresses no opinion on the merits of Plaintiff’s claims.
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