Weaver v. William
ORDER signed by Magistrate Judge Allison Claire on 8/16/2017 ORDERING, within 14 days, plaintiff shall submit the full filing fee of $400.00. No extensions of time will be granted. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.(Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-1557 AC P
Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed pursuant to
42 U.S.C. § 1983. This action is referred to the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).
Plaintiff has not paid the filing fee or requested leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Review of court records1 reveals that plaintiff has been designated
a “three-strikes litigant” under 28 U.S.C. § 1915(g). See e.g. Weaver v. Attorney General, Case
No. 2:14-cv-01132 JAM DAD P, ECF Nos. 5 & 7. This designation reflects that three or more of
plaintiff’s prior federal lawsuits were dismissed on the grounds that they were frivolous,
malicious, or failed to state a claim upon which relief may be granted.
This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
As a result, plaintiff is precluded from proceeding in forma pauperis in this action unless
he demonstrates that he was “under imminent danger of serious physical injury” at the time he
filed his complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th
Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003), and ongoing, Andrews, 493 F.3d at1056. Allegations that are overly speculative or
fanciful may be rejected. Id. at 1057 n.11. Absent a showing that plaintiff was under imminent
danger of serious physical injury at the time he filed his complaint, he may proceed in this action
only if he first pays the full filing fee ($400.00).
Plaintiff is currently incarcerated at California State Prison Sacramento (CSP-SAC). In
the instant complaint, signed and submitted by plaintiff on July 23, 2017, plaintiff alleges that
CSP-SAC Correctional Officer William “continues to harrass plaintiff useing the N-word [sic].”
ECF No. 1 at 3. Plaintiff contends that defendant William “show[s] deliberate indifference” and
that plaintiff “faces a substantial risk of serious harm and injury here which is imminent at the
time of fileing [sic].” Id. Plaintiff seeks $3 million compensatory damages and $2 million
punitive damages. Id.
These allegations fail to demonstrate that plaintiff was under imminent danger of serious
physical injury when defendant William made the alleged statement. Plaintiff is informed that
“verbal harassment or abuse . . . [alone] is insufficient to state a constitutional deprivation under
42 U.S.C. 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citation and
internal quotation omitted). Therefore, plaintiff must submit the full filing fee in order to proceed
with this action.
Accordingly, IT IS HEREBY ORDERED that plaintiff shall, within fourteen (14) days
after service of this order, submit the full filing fee of $400.00. No extensions of time will be
granted. Plaintiff’s failure to comply with this order will result in a recommendation that this
action be dismissed.
DATED: August 16, 2017
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