Weaver v. Rios

Filing 17

ORDER Addressing Objections Docketed on November 15, 2016; ORDER Directing Plaintiff to Pay Filing Fee in Full within Twenty-One Days signed by District Judge Anthony W. Ishii on 12/09/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIE WEAVER,

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Plaintiff,

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v.
RIOS,
Defendants.

1:16-cv-00596-AWI-MJS (PC)
ORDER ADDRESSING OBJECTIONS
DOCKETED ON NOVEMBER 15, 2016
ORDER DIRECTING PLAINTIFF TO PAY
FILING FEE IN FULL WITHIN TWENTY-ONE
DAYS

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TWENTY-ONE DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed
pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on April 28, 2016. (ECF No. 1.)
On September 26, 2016, Plaintiff filed a motion to proceed in forma pauperis
(“IFP”). (ECF No. 13.) On September 27, 2016, the Magistrate Judge issued findings and
recommendations (“F&R”) to deny Plaintiff’s motion for leave to proceed IFP pursuant to
the “three strike rule” and to require Plaintiff to pay the filing fee in full within twenty-one
days. (ECF No. 14.) Plaintiff was granted fourteen days to file objections to the F&R. Id.
Receiving no objections, on November 15, 2016, this Court issued an order adopting the
F&R in full, denying Plaintiff’s motion to proceed IFP, and directing Plaintiff to pay the
$400 filing fee in full within twenty-one days. (ECF No. 15.)
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Shortly after the above-described order adopting was filed, Plaintiff’s objections

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were docketed. The objections were received by Clerk’s office on November 14, 2016.

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The proof of service indicates that Plaintiff placed his objections in the prison mail

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system on October 12, 2016. (ECF No. 16).

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

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

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

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court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

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is under imminent danger of serious physical injury.”

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There is no question that Plaintiff has incurred more than three strikes. 1 The only

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issue, therefore, is whether Plaintiff is under imminent danger of serious physical harm.

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The Court found Plaintiff was not, as his extremely sparse three-page complaint made

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no more than the conclusory allegation that Defendant harassed Plaintiff and put him at

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risk of injury. Plaintiff now argues that the claims within his complaint are meritorious,

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and should be considered by the Court, yet he does not allege that he is under imminent

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danger of serious physical harm. He also appears to challenge the constitutionality of §

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1915(g) and the Antiterrorism and Effective Death Penalty Act (“AEDPA”), but does not

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elaborate on these claims.

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Meritorious or no, Plaintiff has failed to show that he is entitled to proceed IFP.

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505
(9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Plaintiff has filed dozens of
unsuccessful cases in the Eastern District of California; however, given the volume of Plaintiff’s filings, the
Court only takes judicial notice of the following seven cases: Weaver v. Davisson, 2:14-cv-01906-MCEDAD (E.D. Cal.) (dismissed for failure to state a claim on September 29, 2014); Weaver v. Connelly, 2:14cv-01800-MCE-AC (E.D. Cal.) (dismissed for failure to state a claim on November 18, 2014); Weaver v.
Attorney General, 2:14-cv-01132-JAM-DAD (E.D. Cal.) (dismissed as frivolous on October 22, 2014);
Weaver v. California Correctional Institution, 1:06-cv-01210-OWW-LJO (E.D. Cal.) (dismissed as frivolous
and malicious on October 3, 2006); Weaver v. California Correctional Institution, 1:06-cv-01208-OWWLJO (E.D. Cal.) (dismissed as frivolous and malicious on October 3, 2006); Weaver v. Tehachapi
Confinement SHU, 1:06-cv-00341-AWI-LJO (E.D. Cal.) (dismissed for failure to state a claim on
September 28, 2006); Weaver v. California Correctional Institution, 1:06-cv-00429-AWI-SMS (E.D. Cal.)
(dismissed for failure to state a claim and as frivolous on September 12, 2006).

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:
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place;
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The Court’s previous denial of in forma pauperis status (ECF No. 15) remains in

Plaintiff is directed to pay the $400 filing fee in full within twenty-one days of this
order; and

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The failure of Plaintiff to comply with this order will result in dismissal of this case
without further notice.

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IT IS SO ORDERED.
Dated: December 9, 2016
SENIOR DISTRICT JUDGE

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