Weaver v. William

Filing 3

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)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 WILLIE WEAVER, 11 Plaintiff, 12 13 No. 2:17-cv-1557 AC P v. ORDER WILLIAM, 14 Defendant. 15 Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed pursuant to 16 17 42 U.S.C. § 1983. This action is referred to the undersigned United States Magistrate Judge 18 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). 19 Plaintiff has not paid the filing fee or requested leave to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. Review of court records1 reveals that plaintiff has been designated 21 a “three-strikes litigant” under 28 U.S.C. § 1915(g). See e.g. Weaver v. Attorney General, Case 22 No. 2:14-cv-01132 JAM DAD P, ECF Nos. 5 & 7. This designation reflects that three or more of 23 plaintiff’s prior federal lawsuits were dismissed on the grounds that they were frivolous, 24 malicious, or failed to state a claim upon which relief may be granted. 25 1 26 27 28 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 questioned). 1 1 As a result, plaintiff is precluded from proceeding in forma pauperis in this action unless 2 he demonstrates that he was “under imminent danger of serious physical injury” at the time he 3 filed his complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th 4 Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th 5 Cir. 2003), and ongoing, Andrews, 493 F.3d at1056. Allegations that are overly speculative or 6 fanciful may be rejected. Id. at 1057 n.11. Absent a showing that plaintiff was under imminent 7 danger of serious physical injury at the time he filed his complaint, he may proceed in this action 8 only if he first pays the full filing fee ($400.00). 9 Plaintiff is currently incarcerated at California State Prison Sacramento (CSP-SAC). In 10 the instant complaint, signed and submitted by plaintiff on July 23, 2017, plaintiff alleges that 11 CSP-SAC Correctional Officer William “continues to harrass plaintiff useing the N-word [sic].” 12 ECF No. 1 at 3. Plaintiff contends that defendant William “show[s] deliberate indifference” and 13 that plaintiff “faces a substantial risk of serious harm and injury here which is imminent at the 14 time of fileing [sic].” Id. Plaintiff seeks $3 million compensatory damages and $2 million 15 punitive damages. Id. 16 These allegations fail to demonstrate that plaintiff was under imminent danger of serious 17 physical injury when defendant William made the alleged statement. Plaintiff is informed that 18 “verbal harassment or abuse . . . [alone] is insufficient to state a constitutional deprivation under 19 42 U.S.C. 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citation and 20 internal quotation omitted). Therefore, plaintiff must submit the full filing fee in order to proceed 21 with this action. 22 Accordingly, IT IS HEREBY ORDERED that plaintiff shall, within fourteen (14) days 23 after service of this order, submit the full filing fee of $400.00. No extensions of time will be 24 granted. Plaintiff’s failure to comply with this order will result in a recommendation that this 25 action be dismissed. 26 DATED: August 16, 2017 27 28 2

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