Blackman v. Spalding et al

Filing 4

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 To Enter Judgment (ECF Nos. 1 & 2 ), signed by District Judge Lawrence J. O'Neill on 1/27/2016.CASE CLOSED. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,

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Plaintiff,

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v.
S. SPALDING, et al.,

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Defendants.

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Case No.: 1:16-cv-00115-LJO-SAB (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 Nos. 1 & 2]

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Plaintiff Tony Blackman, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on January 25, 2016. Plaintiff seeks leave to proceed in forma pauperis

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in this case.

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However, Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a

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

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

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States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

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which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”1

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The Court takes judicial notice of the following United States District Court cases: Blackman v.
Taxdahl, case number 1:04-cv-06389-AWI LJO (E.D. Cal.) (dismissed on May 18, 2007, for failure to
state a claim); Blackman v. Evans, case number 1:06-cv-00081-GSA (E.D. Cal.) (dismissed on Feb 3,
2009, for failure to state a claim); and Blackman v. Medina, case number 3:05-cv-05390-SI (N.D.
Cal.) (dismissed on Mar. 13, 2006, and for failure to state a claim); see also Blackman v. Hedgpath,
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The Court has reviewed Plaintiff’s complaint and it does not involve imminent danger of serious

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physical injury to Plaintiff.

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Plaintiff’s claims arise out of processing and/or handling of his inmate appeals, requests for

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accommodations, and access to the law library.

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Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007).

Plaintiff is not in imminent danger of serious physical injury and therefore, he is not entitled to
proceed in forma pauperis. Accordingly, the Court HEREBY ORDERS as follows:

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1.

Plaintiff’s motion for leave to proceed in forma pauperis in this action is DENIED;

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2.

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

/s/ Lawrence J. O’Neill

January 27, 2016

UNITED STATES DISTRICT JUDGE

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case number 1:10-cv-01393 LJO MJS (E.D. Cal) (Aug. 11, 2010, order designating plaintiff a three
strikes litigant for purposes of section 1915(g).) 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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