Howze v. Malmendier et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 11/22/16 ORDERING that plaintiff shall submit, within 21 days from the date of this order, the appropriate filing fee. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed. (Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.L. HOWZE, 12 13 No. 2:16-cv-1737 GEB KJN P Plaintiff, v. ORDER 14 RICK MALMENDIER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 19 § 636(b)(1). 20 Plaintiff has neither paid the filing fee for this action nor requested leave to proceed in 21 forma pauperis pursuant to 28 U.S.C. § 1915. Review of court records reveals that on at least 22 three occasions lawsuits filed by the plaintiff have been dismissed on the grounds that they were 23 frivolous or malicious or failed to state a claim upon which relief may be granted: 24 Howze v. Vela, Case No. CV-13-1610 UA (RZ) (C.D. Cal. March 19, 2013) (the action 25 was “frivolous, malicious or fails to state a claim upon which relief may be granted,” citing 28 26 U.S.C. § 1915(g), “leave to amend would be futile.”). 27 28 Howze v. Vela, Case No. 13-56019 (9th Cir. Jun. 12, 2013) (found appeal to be frivolous and denied request to proceed in forma pauperis). 1 1 Howze v. Tanaka, Case No. 2:13-cv-4422 UA (RZ) (C.D. Cal. July 15, 2013) (denied in 2 forma pauperis status because the action was “frivolous, malicious or fails to state a claim upon 3 which relief may be granted.”).1 4 Because plaintiff has sustained three strikes under § 1915g, he is precluded from 5 proceeding in forma pauperis in this action unless plaintiff is “under imminent danger of serious 6 physical injury.” 28 U.S.C. § 1915(g). Plaintiff has not alleged any facts which suggest that he is 7 under imminent danger of serious physical injury. Thus, plaintiff must submit the appropriate 8 filing fee in order to proceed with this action. 9 In accordance with the above, IT IS HEREBY ORDERED that plaintiff shall submit, 10 within twenty-one days from the date of this order, the appropriate filing fee. Plaintiff’s failure to 11 comply with this order will result in a recommendation that this action be dismissed. 12 Dated: November 22, 2016 13 14 15 /howz.1737.1915g 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff may have sustained a fourth strike in Howze v. Vela, No. 13-56382 (9th Cir. Aug. 8, 2013), where his appeal of no. 2:13-cv-4422 UA RZ, was affirmed. The Court of Appeals stated that the “district court did not abuse its discretion by denying Howze leave to proceed in forma pauperis because Howze’s claims were either frivolous or lacked merit.” No. 13-56382 at 2. The affirmance of a strike dismissal, standing alone, is insufficient to constitute a strike. See ElShaddai v. Zamora, 833 F.3d 1036, 1043 (9th Cir. 2016). Rather, the appeal itself must be dismissed as frivolous, malicious, or failing to state a claim in order to constitute a strike. Id. The dismissal of the appeal in no. 13-56382 could arguably be considered a strike based on the court’s use of the terms “frivolous or lacked merit.” However, because plaintiff has sustained three other strikes, the court declines to make a determination as to the second appeal. 2

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