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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WALTER LANGSTON,
Plaintiff,

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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

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On November 29, 2016, the Court granted the plaintiff’s request to proceed in forma

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pauperis. Recently, Plaintiff filed a motion to “supplement” his in forma pauperis status, which is

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currently before the Court as is his complaint for screening under 28 U.S.C. § 1915A(a). When

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these documents are reviewed together, it is apparent that Plaintiff was less than truthful when he

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indicated that he had only filed one prior lawsuit while a prisoner and that his in forma pauperis

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status should be revoked.

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A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

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28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner

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

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

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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
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injury.” 28 U.S.C. § 1915(g).

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B. DISCUSSION
The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

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873, 876 n.1 (9th Cir. 2004). Here, the Court takes judicial notice of four of Plaintiff’s prior

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lawsuits which were dismissed for failure to state a cognizable claim before Plaintiff filed this

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action: Langston v. Finn, et al., 2:10-cv-02196-EFB, dismissed on 03/02/2011; Langston v.

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Enkojii, et al., 2:10-cv-02715-GGH, dismissed on 04/26/2011; Langston v. Finn, et al., 2:08-cv-

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00275-EFS, dismissed on 05/01/2013; and Langston v. Hartley, et al., 2:10-cv-03191-KJN,

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dismissed on 05/24/2013. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from

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proceeding in forma pauperis in this action unless at the time the complaint was filed, he was

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under imminent danger of serious physical injury.
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). In fact,

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despite having filed numerous actions1 under section 1983 such that he is well aware of the

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pleading requirements, Plaintiff does not state any factual allegations in this action, but merely

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wrote “see attached.” (Doc. 1, p. 3.) It is not the Court=s job to sift through exhibits to ascertain

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the claims Plaintiff intends to pursue, their factual basis, and the identities of persons whom he

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intends to pursue as defendants. O=Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir.

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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.

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2007) (quoting Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999)) (A>[T]he party who

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brings a suit is master to decide what law he will rely upon.=@). Certainly, Plaintiff does not state

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any allegations upon which to find that he was under imminent danger of serious physical injury

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at the time the Complaint was filed. Thus, Plaintiff is precluded from proceeding in forma

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pauperis in this action. Andrews, 493 F.3d at 1056-57.

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C. ORDER

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Accordingly, the Court ORDERS:

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1.

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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.

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IT IS SO ORDERED.
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Dated:

December 16, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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