Harris v. Virga et al

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/4/2012 ORDERING that plaintiff has 21 days to SHOW CAUSE why he is not barred from proceeding ifp. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN HARRIS

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Plaintiff,

No. CIV S-11-3322 CKD P

vs.

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TOM VIRGA, et al.
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action under 42

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U.S.C. § 1983. He has not filed an application to proceed in forma pauperis (IFP), nor has he

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paid the filing fee of $350.00. The court’s usual practice is to allow prisoners proceeding pro se

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additional time to submit a completed application to proceed IFP. However, in this case, it

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appears plaintiff is barred from receiving IFP status under 28 U.S.C. § 1915(g).

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The “three strikes” provision of the Prison Litigation Reform Act (PLRA)

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empowers a court to deny IFP status to a litigant who has had three actions “dismissed on the

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grounds that [they are] frivolous, malicious, or fail[] to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(g). An action meets this standard if it is “based on an indisputably

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meritless legal theory” or its “factual contentions are clearly baseless. Examples of the former

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class are claims against which it is clear that the defendants are immune from suit and claims of

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infringement of a legal interest which clearly does not exist.” Neitzke v. Williams, 490 U.S. 319,
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327 (1989) (internal citation omitted). The bar does not apply if a plaintiff can demonstrate that

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he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).1

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The court’s review of its records shows that plaintiff had already run afoul of the

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“three strikes” provision before he filed this case.2 In Harris v. Reynolds, the court cited three

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previous dismissals against plaintiff for failure to state a claim and ordered plaintiff to show

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cause why his application to proceed IFP should not be denied under § 1915(g) of the PLRA.

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See Harris v. Reynolds, Civil Action No. 2:09-cv-1817 JAM DAD (Docket No. 7). “Show

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cause” in that context could only mean plaintiff showing he was under imminent danger of

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serious physical injury and thus exempt from the bar of § 1915(g). Plaintiff failed to make that

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showing, his IFP application was denied, and he was required to pay the fee for filing a civil

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lawsuit in order to proceed. See id. (Docket No. 9). When he failed to pay the fee, his case was

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dismissed. See id. (Docket No. 17).

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Plaintiff’s status in this court is that of a “three strikes” violator under the PLRA.

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The court will therefore order him to show cause why he is not barred from proceeding IFP under

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28 U.S.C. § 1915(g) – to show, in other words, that he is under imminent danger of serious

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physical injury and therefore exempt from the “three strikes” bar in this case.

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“The statute contemplates that the ‘imminent danger’ will exist contemporaneously with
the bringing of the action.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.), cert. denied,
533 U.S. 953 (2001). “Imminent” means “about to occur at any moment or [] impending.” Id. at
315; see also Oxford English Dictionary, available at http://dictionary.oed.com (“close at hand in
its incidence; coming on shortly”).
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The court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986).
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Accordingly, IT IS HEREBY ORDERED that plaintiff has twenty-one days from

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the entry of this order in which show cause why he is not barred from proceeding in forma

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pauperis under 28 U.S.C. § 1915(g).

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Dated: January 4, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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harr3322.ord

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