Gonzales v. Podsakoff, et al.

Filing 21

ORDER to SHOW CAUSE Why In Forma Pauperis Stats Should Not Be Revoked re 1 , 3 , 5 , signed by Magistrate Judge Sheila K. Oberto on 4/25/16. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL GONZALES, Plaintiff, 10 v. 11 12 PODSAKOFF, et al., Defendants. 13 Case No. 1:15-cv-00924-SKO (PC) ORDER TO SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE REVOKED (Docs. 1, 3, 5) THIRTY (30) DAY DEADLINE 14 15 Plaintiff, Michael Gonzales, is a state prisoner proceeding pro se and in forma pauperis in 16 this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint in this action 17 on June 18, 2015. On that same date, Plaintiff filed an application to proceed in forma pauperis, 18 which was granted later that month. (Docs. 3, 5.) 19 I. 20 THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner 21 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 22 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 23 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 24 which relief may be granted, unless the prisoner is under imminent danger of serious physical 25 injury.” 28 U.S.C. § 1915(g). 26 II. 27 28 DISCUSSION The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of six of Plaintiff’s prior lawsuits: (1) 1 1 Gonzales v. Galaza, et al., Case Number 1:00-cv-06028-AWI-HGB PC which was dismissed on 2 June 15, 2001, for failure to state a cognizable claim; (2) Gonzales v. Gadsden, et al., Case 3 Number 1:04-cv-05491-OWW-LJO PC which was dismissed on December 11, 2006, for failure 4 to state a cognizable claim; (3) Gonzales v. Vikjord, et al., Case Number 1:06-cv-01568-OWW- 5 WMW PC which was dismissed on July 8, 2008, for failure to state a cognizable claim; (4) 6 Gonzales v. Yamat, et al., Case Number 1:54-cv-00550-AWI-DLB PC which was dismissed on 7 August 15, 2008, for failure to state a cognizable claim and for failure to obey a court order; (5) 8 Gonzales v. Frescura, et al., Case Number 1:07-cv-00565-OWW-GSA PC which was dismissed 9 on April 24, 2009, for Plaintiff’s to state a cognizable claim; and (6) Gonzales v. Price, Case 10 Number 1:07-cv-01391-AWI-GBC PC which was dismissed on June 15, 2001, for failure to state 11 a cognizable claim. All of these actions were dismissed before June 18, 2015, when Plaintiff filed 12 the present action. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from 13 proceeding in forma pauperis in this action unless at the time the Complaint was filed, he was 14 under imminent danger of serious physical injury. The Court has reviewed Plaintiff's Complaint 15 and finds that he does not meet the imminent danger exception. See Andrews v. Cervantes, 493 16 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff alleges that he is being retaliated against for filing inmate appeals and lawsuits by 17 18 ten prison officers by being served tainted meals, being denied meals, being denied medical care, 19 by having mail confiscated and/or tampered with, and being subjected to excessive force when 20 prison staff shuts the food port on his hand/wrist when meals are distributed and he attempts to 21 flag down supervisory personnel. Though Plaintiff’s last allegation is obviously not desirable, his 22 23 24 25 26 27 28 allegations do not show serious injury to state a cognizable claim for deliberate indifference to his serious medical need under the Eight Amendment, let alone imminent danger of serious physical injury when he filed suit. The only cognizable claims stated in the Complaint in this action are against Defendants Podsakoff and Lawrence for interference with Plaintiff’s sending and receipt of mail and for two instances of excessive force surrounding closures of the food port. 1 Thus, Plaintiff is precluded from proceeding in forma pauperis in this action. Andrews, 493 F.3d at 1 See concurrently issued screening order. 2 1 1056-57. 2 III. ORDER 3 Accordingly, it is HEREBY ORDERD that within thirty (30) days of the date of service of 4 this order, Plaintiff must show cause why his in forma pauperis status should not be revoked so as 5 to require him to pay the filing fee in full to proceed in this action. 6 7 8 IT IS SO ORDERED. Dated: April 25, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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