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