Wilson v. Smith et al

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/7/16 ORDERING that plaintiff's motion to proceed in forma pauperis (ECF No. 2 ) is DENIED; and Plaintiff shall pay the $400 filing fee no later than 14 days from the date of this order. Failure to comply with this order will result in a recommendation that this action be dismissed. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID W. WILSON,

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No. 2:16-cv-2091 MCE CKD P

Plaintiff,
v.

ORDER

MICHAEL C. SMITH, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983 along with an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a),

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1915(a).

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28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

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and prosecution of any suit without prepayment of fees by a person who submits an affidavit

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indicating that the person is unable to pay such fees. However,

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[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding 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).
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Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28

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U.S.C. § 1915(g). Wilson v. Marin, et al., No. 2:14-cv-1829 WBS EFB P (October 7, 2014

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findings and recommendations denying in forma pauperis status and recommending dismissal

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without prejudice to re-filing upon pre-payment of filing fee), adopted by district judge on

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November 11, 2014; see also Wilson v. Hubbard, No. 2:07-cv-1558 WBS GGH (Oct. 16, 2009

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order designating plaintiff a Three Strikes litigant). The court takes judicial notice of the three

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cases identified in Wilson v. Marin as § 1915(g) strikes against plaintiff, all of which were

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dismissed for failure to state a claim.1

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The imminent danger applies only if it is clear that the danger existed when the complaint

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was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent

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danger that are overly speculative or fanciful may be rejected. Id. at 1057, n.11. Having

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reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged imminent

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danger of serious physical injury under § 1915(g).

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In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this
action; otherwise, it will be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is denied; and

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2. Plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this

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order. Failure to comply with this order will result in a recommendation that this action be

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dismissed.

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Dated: October 7, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / wils2091.threestrikes

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Wilson v. Schwartz, No. 2:05-cv-1649 GEB CMK (October 31, 2006 order dismissing action
for failure to state a claim); Wilson v. Dovey, No. 2:06-cv-1032 FCD EBF (March 8, 2007 order
dismissing action for failure to state a claim); and Wilson v. Dovey, No. 2:06-cv-2553 JKS EFB
(March 11, 2008 order dismissing action for failure to state a claim).
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