Hubbard v. Williams et al

Filing 4

ORDER Denying 3 Motion for Leave to Proceed In Forma Pauperis and Dismissing Action, without Prejudice signed by District Judge Lawrence J. O'Neill on 08/26/2015. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ZANE HUBBARD,

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Plaintiff,

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v.
WILLIAMS, et al.,

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Defendants.

Case No. 1:15-cv-01245-LJO-DLB PC
ORDER DENYING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS AND
DISMISSING ACTION, WITHOUT
PREJUDICE, PURSUANT TO 28 U.S.C.
SECTION 1915(G)
(Document 3)

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Plaintiff Zane Hubbard (“Plaintiff”) is a California state prisoner proceeding pro se in this

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civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 10, 2015. Plaintiff

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filed an application to proceed in forma pauperis on August 12, 2015.

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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

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no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court

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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
physical injury.@ 28 U.S.C. § 1915(g).
///
///

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B.

DISCUSSION
A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. ' 1915(g) and

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is precluded from proceeding in forma pauperis unless he was, at the time the complaint was filed,

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under imminent danger of serious physical injury.1
The Court has reviewed Plaintiff=s complaint and finds that he does not meet the imminent

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danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff
appears to be suing family members and friends, alleging that they have harassed him while in
prison, stole patents and copyrights, forced him to have his face tattoos removed and kept him
unlawfully confined in prison. Plaintiff’s allegations are fanciful and do not support a finding that
he was under imminent danger of serious physical injury at the time he filed his complaint.

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Based on the foregoing, the Court finds that Plaintiff fails to allege the imminent danger of
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serious physical injury necessary to bypass § 1915(g)’s restriction on filing suit without prepayment
of the filing fee.
C.

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CONCLUSION
Accordingly, Plaintiff’s motion to proceed in forma pauperis is DENIED and this action is

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DISMISSED, without prejudice to re-filing accompanied by the $400.00 filing fee.

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This terminates this action in its entirety.
IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

August 26, 2015

UNITED STATES DISTRICT JUDGE

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The Court takes judicial notice of the following United States District Court cases: Hubbard v. Mendes, 1:13-cv01078-LJO-MJS (dismissed Mar. 17, 2014, for failure to state a claim); Hubbard v. Lua, 1:14-cv-00351-LJO-SAB
(E.D.Cal.) (dismissed May 6, 2014, for failure to state a claim); Hubbard v. Corcoran State Prison, 1:13-cv-01736-AWIMJS (E.D.Cal.) (dismissed May 23, 2014, for failure to state a claim); and Hubbard v. Weaver, 1:13-cv-01755-MJS
(E.D.Cal.) (dismissed May 30, 2014, for failure to state a claim). 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).

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