Hendon v. Carrillo

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/28/2017 DENYING plaintiff's 2 motion to proceed IFP; and plaintiff shall pay the $400.00 filing fee no later than 14 days from the date of this order. Failure to comply will result in dismissal of this action.(Yin, K)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS HENDON, 12 No. 2:17-cv-0170 CKD P Plaintiff, 13 v. 14 LISA CARILLO, 15 ORDER Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983 along with an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 19 1915(a). 20 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement 21 and prosecution of any suit without prepayment of fees by a person who submits an affidavit 22 indicating that the person is unable to pay such fees. However, 23 24 25 26 27 28 [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). 1 1 Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28 2 U.S.C. § 1915(g). See Hendon v. Kulka, No. 2:14-cv-2581 AC P (order identifying plaintiff as 3 three-strikes litigant on August 3, 2015).1 The court takes judicial notice of the three cases 4 identified therein as § 1915(g) strikes, all of which were dismissed for failure to state a claim. All 5 were dismissed well prior to the filing of the instant action and constitute strikes under § 1915(g). 6 The imminent danger applies only if it is clear that the danger existed when the complaint 7 was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent 8 danger that are overly speculative or fanciful may be rejected. Id. at 1057, n.11. Having 9 reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged “imminent 10 danger of serious physical injury” under § 1915(g). 11 12 In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this action; otherwise, it will be dismissed. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion to proceed in forma pauperis is denied; and 15 2. Plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this 16 order. Failure to comply with this order will result in dismissal of this action. 17 Dated: February 28, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 2 / hend0170.threestrikes 24 25 26 27 28 1 See also Hendon v. Baroya, No. 1:09-cv-0911 MJS P (E.D. Cal.) (order denying leave to proceed in forma pauperis filed on July 29, 2010); Hendon v. Kulka, No. 2:14-cv-1171 KJN P (E.D. Cal.) (order denying leave to proceed in forma pauperis on June 9, 2014). 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?