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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-01121-SKO (PC)

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NICHOLAS PATRICK,

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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

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Plaintiff, Nicholas Patrick, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint in this action on

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August 14, 2017. On that same date, Plaintiff filed an application to proceed in forma pauperis,

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which was granted after the action was transferred to this Court. (Docs. 2, 6.)

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“In no event shall a prisoner bring a civil action . . . under this section if the prisoner has,

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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or

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appeal in a 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 is under

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imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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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, judicial notice is taken of Patrick v. Reyes, et al., 1:15-cv-

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01790-LJO-MJS (PC), closed October 28, 2016, on Plaintiff’s voluntary dismissal after order

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finding failure to state a claim; Patrick v. Reynaga, et al., 1:16-cv-00239-LJO-MJS (PC), closed

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May 16, 2017, for failure to obey court order after finding Plaintiff failed to state a claim and

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failed to file an amended complaint; and Patrick v. Petroff, et al., 1:16-cv-00945-AWI-MJS (PC),

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closed June 28, 2017, for failure to state a claim. Thus, Plaintiff had three strikes under §1915(g)

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before he filed this action.
Plaintiff may only proceed in forma pauperis in this action if his allegations show that he

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was under imminent danger of serious physical injury at the time it was filed. In this action,

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Plaintiff complains of events that occurred at the Substance Abuse Treatment Facility in

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Corcoran, California (“SATF”). However, when Plaintiff filed this action, he was housed at

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MuleCreek State Prison (“MCSP”) in Ione, California. (See Doc. 1, p. 1.) The Complaint

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contains allegations regarding incidents that occurred at SATF. Plaintiff does not state any

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allegations of wrongdoing at MCSP and he was not in imminent danger of serious physical injury

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at the time he filed suit, which precludes him from proceeding in forma pauperis in this action.

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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

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allegations in this action do not establish that Plaintiff was facing imminent danger of serious

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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

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service of this order, Plaintiff SHALL show cause why his in forma pauperis status should not be

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revoked; alternatively, Plaintiff may file a notice of voluntary dismissal. The Clerk of the Court

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is directed to assign a district judge to this action.

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IT IS SO ORDERED.

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Dated:

November 14, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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