Patrick v. Diaz et al

Filing 9

ORDER to SHOW CAUSE why: (1) Plaintiff's In Forma Pauperis Status Should Not Be Revoked and (2) Plaintiff Should Not Be Required to Pay the Filing Fee;alternatively, Plaintiff may file a notice of voluntary dismissal ; New Case Number is 1:17-cv-1121 AWI-SKO (PC), signed by Magistrate Judge Sheila K. Oberto on 11/14/2017. Show Cause Response due 21-Day Deadline. (Martin-Gill, S)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 Case No. 1:17-cv-01121-SKO (PC) 8 9 NICHOLAS PATRICK, 10 11 12 13 14 Plaintiff, v. ORDER TO SHOW CAUSE WHY: (1) PLAINTIFF’S IN FORMA PAUPERIS STATUS SHOULD NOT BE REVOKED AND (2) PLAINTIFF SHOULD NOT BE REQUIRED TO PAY THE FILING FEE (Doc. 1) DIAZ, et al., Defendants. TWENTY-ONE (21) DAY DEADLINE CLERK OF THE COURT TO ASSIGN A DISTRICT JUDGE 15 16 17 Plaintiff, Nicholas Patrick, is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint in this action on 19 August 14, 2017. On that same date, Plaintiff filed an application to proceed in forma pauperis, 20 which was granted after the action was transferred to this Court. (Docs. 2, 6.) 21 “In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, 22 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 23 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 24 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 25 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 26 The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 27 873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of Patrick v. Reyes, et al., 1:15-cv- 28 01790-LJO-MJS (PC), closed October 28, 2016, on Plaintiff’s voluntary dismissal after order 1 1 finding failure to state a claim; Patrick v. Reynaga, et al., 1:16-cv-00239-LJO-MJS (PC), closed 2 May 16, 2017, for failure to obey court order after finding Plaintiff failed to state a claim and 3 failed to file an amended complaint; and Patrick v. Petroff, et al., 1:16-cv-00945-AWI-MJS (PC), 4 closed June 28, 2017, for failure to state a claim. Thus, Plaintiff had three strikes under §1915(g) 5 before he filed this action. Plaintiff may only proceed in forma pauperis in this action if his allegations show that he 6 7 was under imminent danger of serious physical injury at the time it was filed. In this action, 8 Plaintiff complains of events that occurred at the Substance Abuse Treatment Facility in 9 Corcoran, California (“SATF”). However, when Plaintiff filed this action, he was housed at 10 MuleCreek State Prison (“MCSP”) in Ione, California. (See Doc. 1, p. 1.) The Complaint 11 contains allegations regarding incidents that occurred at SATF. Plaintiff does not state any 12 allegations of wrongdoing at MCSP and he was not in imminent danger of serious physical injury 13 at the time he filed suit, which precludes him from proceeding in forma pauperis in this action. 14 Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007). Plaintiff had three strikes under 28 U.S.C. §1915(g) before he filed this action. The 15 16 allegations in this action do not establish that Plaintiff was facing imminent danger of serious 17 physical injury at the time the Complaint was filed when he was housed at MCSP. Accordingly, it is HEREBY ORDERED that, within twenty-one days of the date of 18 19 service of this order, Plaintiff SHALL show cause why his in forma pauperis status should not be 20 revoked; alternatively, Plaintiff may file a notice of voluntary dismissal. The Clerk of the Court 21 is directed to assign a district judge to this action. 22 IT IS SO ORDERED. 23 24 Dated: November 14, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 .

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