Bell v. Hanks

Filing 18

ORDER DIRECTING MONTHLY PAYMENTS signed by Magistrate Judge Craig M. Kellison on 3/26/15 GRANTING 16 and 17 motions for leave to proceed IFP; ORDERING the Director of the CDC to collect and forward payment from the trust account of Horace Thoma s and forward payment to the court until the balance is paid in full. Clerk of the Court is directed to serve a copy of this order and a copy of plaintiff's signed in forma pauperis affidavit to the Director of the CDC; and the Clerk of the Court is further directed to serve a copy of this order on the Financial Department of the court. (cc CDC, Financial). (Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

HORACE THOMAS,

12
13
14
15

Plaintiff,
vs.

ORDER

W. HANKS,
Defendant.

16
17

No. 2:14-cv-0108-GEB-CMK-P

/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

18

U.S.C. § 1983. Plaintiff requests leave to proceed in forma pauperis and has submitted a

19

declaration that makes the showing required by 28 U.S.C. § 1915(a). Plaintiff also submitted his

20

request for leave to proceed under the imminent danger provision of 28 U.S.C. § 1915(g).

21

The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides:

22

In no event shall a prisoner bring a civil action . . . under this
section if the prisoner was, on three or more prior occasions, while
incarcerated or detained . . ., brought an action . . . in a court of the United
States that was dismissed on the ground 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.

23
24
25

Id.
26
1

1

Thus, when a prisoner plaintiff has had three or more prior actions dismissed for

2

one of the reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in

3

forma pauperis unless the imminent danger exception applies.

4

Here, plaintiff was cautioned that this court has already determined he has filed at

5

least three cases which were dismissed for failure to state a claim. See e.g., Bell v. Stiles, No.

6

1:12-cv-1925-MJS. Plaintiff was directed that before the court would grant any application to

7

proceed in forma pauperis, he would be required to show he was under imminent danger of

8

serious physical injury at the time he filed this action. He has submitted a statement indicating

9

the possibility of continuing danger of physical injury, considering the attack he suffered at issue

10

in his complaint and allegedly ordered by the sole defendant in this action, was carried out by

11

“skin heads” and he continues to be at risk of further attack regardless of which prison he is

12

housed.

13

The undersigned finds plaintiff’s explanation sufficient, although questionable, to

14

meet the imminent danger provision. Thus, his request to proceed in forma pauperis will be

15

granted.

16
17

To:

The California Department of Corrections and Rehabilitation
1515 S Street, Sacramento, California 95814:

18
19

Plaintiff is obligated to pay the full statutory filing fee of $350.00 for this action.

20

In addition to any initial partial filing fee required to be assessed, plaintiff will be obligated to

21

make monthly payments in the amount of twenty percent of the preceding month’s income

22

credited to plaintiff’s inmate trust account. The agency referenced above is required to send to

23

the Clerk of the Court the initial partial filing fee and thereafter payments from plaintiff’s inmate

24

trust account each time the amount in the account exceeds $10.00, until the statutory filing fee of

25

$350.00 is paid in full. See 28 U.S.C. § 1915(b)(2).

26

///
2

1

Accordingly, IT IS HEREBY ORDERED that:

2

1.

Plaintiff’s motion for leave to proceed in forma pauperis (Docs. 16, 17) is

2.

Plaintiff is required to pay the full statutory filing fee of $350.00 for this

3
4
5
6

granted;

action pursuant to 28 U.S.C. §§ 1914(a) and 1915(b)(1);
3.

The director of the agency referenced above, or a designee, shall collect

7

from plaintiff’s inmate trust account an initial partial filing fee in accordance with the provisions

8

of 28 U.S.C. § 1915(b)(1) and shall forward the amount to the Clerk of the Court, such payment

9

to be clearly identified by the name and number assigned to this action;

10

4.

Thereafter, the director of the agency referenced above, or a designee, shall

11

collect from plaintiff's inmate trust account the balance of the filing fee by collecting monthly

12

payments from plaintiff's inmate trust account in an amount equal to twenty percent (20%) of the

13

preceding month's income credited to plaintiff’s inmate trust account and forwarding payments to

14

the Clerk of the Court each time the amount in the account exceeds $10.00 in accordance with 28

15

U.S.C. § 1915(b)(2), until the $350.00 filing fee for this action has been paid in full, such

16

payments to be clearly identified by the name and number assigned to this action;

17
18
19
20

5.

The Clerk of the Court is directed to serve a copy of this order and a copy

of plaintiff's signed in forma pauperis affidavit to the address shown above;
6.

The Clerk of the Court is further directed to serve a copy of this order on

the Financial Department of the court.

21
22
23
24

DATED: March 26, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

25
26
3