Reed v. Biter

Filing 18

ORDER REVOKING Plaintiff's In Forma Pauperis Status and DISMISSING Action Without Prejudice Pursuant to 1915(G), signed by District Judge Lawrence J. O'Neill on 9/24/15: The Clerk of the Court shall enter judgment. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRONE L. REED,

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Plaintiff,
v.

Case No. 1:15-cv-00627-LJO-DLB PC
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS AND
DISMISSING ACTION WITHOUT
PREJUDICE PURSUANT TO 1915(G)

BITER, et al.,

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Defendants.

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Plaintiff Tyrone L. Reed (“Plaintiff”) is a California state prisoner proceeding pro se and in

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forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on March

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10, 2015. He filed an amended complaint on March 31, 2015, and the action was transferred to this

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Court on April 22, 2015. Plaintiff names Warden Biter and Correctional Officer Cranston as

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Defendants.

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On April 23, 2015, the Court granted Plaintiff’s application to proceed in forma pauperis
(ECF No. 12).
DISCUSSION
Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while

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

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that was 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.”1

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Plaintiff was designated as a three-strikes litigant in Reed v. Wong, 3:11-cv-4921 TEH (N.D. Cal.

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2011).
The Court has reviewed Plaintiff’s First Amended Complaint and finds that it does not

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involve imminent danger of serious physical injury to Plaintiff. Andrews v. Cervantes, 493 F.3d

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1047, 1055-56 (9th Cir. 2007). Plaintiff alleges the use of excessive force by Defendant Cervantes

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during an incident prior to the filing of the complaint. In fact, Plaintiff admits that the “danger has

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already been committed.” ECF No. 6, at 3.

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Therefore, because Plaintiff is not in imminent danger of serious physical injury, he is not

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entitled to proceed in forma pauperis. Plaintiff must pay the filing fee if he wishes to litigate these

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claims.

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Accordingly, the Court HEREBY ORDERS as follows:

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1.

Plaintiff’s in forma pauperis status is REVOKED;

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2.

This action is DISMISSED, without prejudice to re-filing accompanied by the

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$400.00 filing fee; and

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3.

The Clerk of the Court shall enter judgment.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

September 24, 2015

UNITED STATES DISTRICT JUDGE
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The Court takes judicial notice of the following cases: Reed v. Thomas, Case No. 3:08-cv-5612 TEH (N.D. Cal. 2008)
(dismissed December 24, 2008, for failure to state a claim); (2) Reed v. Levy, 3:09-cv-0324 (N.D. Cal. 2009) (dismissed
March 4, 2009, for failure to state a claim); (3) Reed v. Newport Tobacco Co., 3:11-cv-1195 (N.D. Cal. 2011) (dismissed
April 7, 2011, for failure to state a claim); and (4) Reed v. Harrison, 1:11-cv-1883 (E.D. Cal. 2011) (dismissed June 20,
2013, for failure to state a claim).

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