Langston v. Avila

Filing 11

ORDER to SHOW CAUSE Why In Forma Pauperis Status Should Not be Revoked, signed by Magistrate Judge Jennifer L. Thurston on 12/16/16. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER LANGSTON, Plaintiff, 12 13 14 15 Case No. 1:16-cv-01445-JLT (PC) ORDER TO SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE REVOKED v. AVILA, (Docs. 1, 3, 7-10) Defendant. 30-DAY DEADLINE 16 17 On November 29, 2016, the Court granted the plaintiff’s request to proceed in forma 18 pauperis. Recently, Plaintiff filed a motion to “supplement” his in forma pauperis status, which is 19 currently before the Court as is his complaint for screening under 28 U.S.C. § 1915A(a). When 20 these documents are reviewed together, it is apparent that Plaintiff was less than truthful when he 21 indicated that he had only filed one prior lawsuit while a prisoner and that his in forma pauperis 22 status should be revoked. 23 A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 24 28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner 25 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 26 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 27 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 28 which relief may be granted, unless the prisoner is under imminent danger of serious physical 1 1 injury.” 28 U.S.C. § 1915(g). 2 B. DISCUSSION The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 3 4 873, 876 n.1 (9th Cir. 2004). Here, the Court takes judicial notice of four of Plaintiff’s prior 5 lawsuits which were dismissed for failure to state a cognizable claim before Plaintiff filed this 6 action: Langston v. Finn, et al., 2:10-cv-02196-EFB, dismissed on 03/02/2011; Langston v. 7 Enkojii, et al., 2:10-cv-02715-GGH, dismissed on 04/26/2011; Langston v. Finn, et al., 2:08-cv- 8 00275-EFS, dismissed on 05/01/2013; and Langston v. Hartley, et al., 2:10-cv-03191-KJN, 9 dismissed on 05/24/2013. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from 10 proceeding in forma pauperis in this action unless at the time the complaint was filed, he was 11 under imminent danger of serious physical injury. The Court has reviewed Plaintiff's complaint and finds that he does not meet the imminent 12 13 danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In fact, 14 despite having filed numerous actions1 under section 1983 such that he is well aware of the 15 pleading requirements, Plaintiff does not state any factual allegations in this action, but merely 16 wrote “see attached.” (Doc. 1, p. 3.) It is not the Court=s job to sift through exhibits to ascertain 17 the claims Plaintiff intends to pursue, their factual basis, and the identities of persons whom he 18 intends to pursue as defendants. O=Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 19 20 21 22 23 24 25 26 27 28 1 See 1:11-cv-01073-GSA (PC) Langston v. Cole et al.; 1:16-cv-01603-DAD-EPG (PC) Langston v. Thompson et al.; 1:16-cv-01800-GSA (PC) Langston v. Jordan; 1:16-cv-01819-BAM (PC) Langston v. Mims; 2:08-cv-02475EFS (PC) Langston v. Finn et al.; 2:10-cv-02196-EFB (PC) Langston v. Finn, et al.; 2:10-cv-02715-GGH (PC) Langston v. Enkoji et al.; 2:10-cv-03191-KJN (PC) Langston v. CDCR et al.; 2:11-cv-01478-JFM (PC) Langston v. Malloy et al.; 2:11-cv-01624-DAD (PC) Langston v. Shiaishi et al.; 2:11-cv-01625-JAM-JFM (PC) Langston v. Orr; 2:11-cv-01660-EFB (PC) Langston v. Cole et al.; 2:11-cv-01662-DAD (PC) Langston v. Reyes et al.; 2:12-cv-00334TLN-CKD (PC) Langston v. Win et al.; 2:15-cv-01437-GEB-KJN (PC) Langston v. California Department of Corrections et al.; 2:15-cv-01500-CMK (PC) Langston v. Fox, et al.; 2:15-cv-01510-TLN-DAD (PC) Langston v. California Department of Correction, et al.; 2:16-cv-01912-KJN (PC) Langston v. Fox et al.; 2:16-cv-01981-AC (PC) Langston v. California Department of Corrections; 2:16-cv-02254-DB (PC) Langston v. Avila; 2:16-cv-02255-DB (PC) Langston v. California Department of Corrections and Rehabilitation et al.; 2:16-cv-02357-JAM-AC (PC) Langston v. Karl; 2:16-cv-02358-GEB-AC (PC) Langston v. Tyler; 2:16-cv-02359-MCE-CKD (PC) Langston v. Lopez et al.; 2:16-cv-02360-MCE-CKD (PC) Langston v. Weber; 2:16-cv-02361-JAM-CMK (PC) Langston v. Gamoly et al.; 2:16-cv-02362-MCE-CKD (PC) Langston v. Roesser; 2:16-cv-02364-GEB-EFB (PC) Langston v. Frantzen et al.; 2:16-cv-02365-JAM-CMK (PC) Langston v. Williams; 2:16-cv-02366-WBS-DB (PC) Langston v. Blackford; 2:16-cv-02509-CKD (PC) Langston v. Thompson et al.; 2:16-cv-02510-KJM-CMK (PC) Langston v. Corona; 2:16-cv-02743-CKD (PC) Langston v. Jordan; 2:16-cv-02749-AC (PC) Langston v. Mims; 2:95-cv-00221WBS-JFM (PC) Langston v. Jay, et al. 2 1 2007) (quoting Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999)) (A>[T]he party who 2 brings a suit is master to decide what law he will rely upon.=@). Certainly, Plaintiff does not state 3 any allegations upon which to find that he was under imminent danger of serious physical injury 4 at the time the Complaint was filed. Thus, Plaintiff is precluded from proceeding in forma 5 pauperis in this action. Andrews, 493 F.3d at 1056-57. 6 C. ORDER 7 Accordingly, the Court ORDERS: 8 1. 9 10 Within 30 days of the date of service of this order, Plaintiff SHALL show cause in writing why his in forma pauperis status should not be revoked; 2. Plaintiff’s motion to supplement his in forma pauperis status is DENIED. 11 IT IS SO ORDERED. 12 13 Dated: December 16, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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