Gonzalez v. Razo et al

Filing 6

ORDER Denying 2 Motion to Proceed In Forma Pauperis, DISMISSING Action, without Prejudice, Pursuant to 28 USC 1915(G), and Directing Clerk of Court to Enter Judgment, signed by Magistrate Judge Dennis L. Beck on 5/28/15. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 MANUEL ANTONIO GONZALEZ, III, 10 Plaintiff, 11 12 v. 13 J. RAZO, et al., Defendants. 14 Case No. 1:15-cv-00680 DLB (PC) ORDER (1) DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, (2) DISMISSING ACTION, WITHOUT PREJUDICE, PURSUANT TO 28 U.S.C. ' 1915(G), AND (3) DIRECTING CLERK OF COURT TO ENTER JUDGMENT (ECF No. 2) 15 _____________________________________/ 16 Plaintiff Manuel Antonio Gonzalez, III, # T-42888, a state prisoner proceeding pro se, filed 17 18 this civil rights action pursuant to 42 U.S.C. § 1983 on May 4, 2015, along with a motion for leave 19 to proceed in forma pauperis. On May 15, 2015, Plaintiff consented to the jurisdiction of the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner 21 22 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 23 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 24 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 25 which relief may be granted, unless the prisoner is under imminent danger of serious physical 1 26 injury.” The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the 27 28 1 The Court takes judicial notice of the following United States District Court cases: 3:07-cv-01342-L-POR, Gonzalez v. Sepulveda, (S.D. Cal. 2007) (Dismissed voluntarily after it was determined that Plaintiff was subject to 28 U.S.C. § 1915(g) as a three-striker); 2:02-cv-08884-PA-SS, Gonzalez v. State of California, et al., (C.D. Cal. 2003) (Order 1 imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 1055-56 2 (9th Cir. 2007). Therefore, Plaintiff must pay the $400.00 filing fee if he wishes to litigate his 3 claim. 4 Accordingly, the Court HEREBY ORDERS as follows: 5 1. Plaintiff’s motion for leave to proceed in forma pauperis in this action is DENIED; 6 2. This action is DISMISSED, without prejudice to re-filing accompanied by the 7 $400.00 filing fee; and 8 3. The Clerk of the Court shall enter judgment. 9 10 IT IS SO ORDERED. 11 Dated: /s/ Dennis May 28, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dismissing First Amended Complaint for failing to state a claim) (strike one); 2:02-cv-07604-PA-SHS, Gonzalez v. Mayor of Carson, (C.D. Cal. 2004) (Order Dismissing Third Amended Complaint for failing to state a claim) (strike two); and 1:02-cv-06456-OWW-WMW, Gonzalez v. Yarborough, (E.D. Cal. 2004) (Order Dismissing Complaint for failing to state a claim) (strike three). These strikes were final prior to the date Plaintiff filed this action. Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011). 2 Plaintiff is suing J. Razo and numerous other defendants who are correctional officers or medical staff at California Correctional Institution at Tehachapi, California. Plaintiff’s claim arises out of an alleged assault which took place during an escort on March 18, 2014. His allegations do not satisfy the imminent danger exception to section 1915(g). 2

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