Robbins v. Lizarraga et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/14/14 ORDERING that this action is DISMISSED without prejudice to re-filing upon pre-payment of the $400 filing fee. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL JAMES ROBBINS,

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Plaintiff,

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v.

No. 2:14-cv-1931-EFB P

ORDER

JOE LIZARRAGA, et al.,

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Defendants.

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Plaintiff Earl James Robbins is a state prisoner proceeding without counsel in an action

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brought under 42 U.S.C. § 1983.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C.

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§ 1915(a). For the reasons explained below, the court finds that plaintiff has not demonstrated he

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is eligible to proceed in forma pauperis.

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A prisoner may not proceed in forma pauperis:
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).

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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Court records reflect that on at least three prior occasions, plaintiff has brought actions

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while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon

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which relief may be granted. See (1) Robbins v. Riverside County Board of Supervisors, No.

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5:06-cv-0236-UA-RC (Mar. 13, 2006 C.D. Cal.) (order dismissing action for failure to state a

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claim because action barred by Rooker-Feldman doctrine); (2) Robbins v. Riverside County

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Board of Supervisors, No. 5:09-cv-1326-UA-RC (July 23, 2009 C.D. Cal.) (order dismissing

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action as being legally and/or patently frivolous and for failure to state a claim because untimely

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and barred by Heck v. Humphrey); and (3) Robbins v. Husen, No. 5:10-cv-788-UA-RC (June 8,

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2010 C.D. Cal.) (order dismissing action as being frivolous, malicious, or failing to state a claim).

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See also Robbins v. Sandoval, No. 2:10-cv-8271-UA-JCG (Nov. 29, 2010 C.D. Cal.) (order

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designating plaintiff a three strikes litigant for purposes of section 1915(g)); Robbins v. Stanley,

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No. 5:11-cv-1662-UA-JCG (Nov. 2, 2011 C.D. Cal.) (same).

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The section 1915(g) exception applies if the complaint makes a plausible allegation that

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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C.

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§ 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to

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apply, the court must look to the conditions the “prisoner faced at the time the complaint was

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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner

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allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an

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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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In the complaint, plaintiff seeks the return of photos that were allegedly taken from him

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on the grounds that they contained nudity. ECF No. 1. His allegations do not demonstrate that he

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suffered from imminent danger of serious physical injury at the time he filed his complaint.

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Thus, the imminent danger exception does not apply.

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Because plaintiff has not paid the filing fee and is not eligible to proceed in forma

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pauperis, this action must be dismissed.

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Accordingly, it is hereby ORDERED that this action is dismissed without prejudice to re-

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filing upon pre-payment of the $400 filing fee.

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Dated: October 14, 2014.

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