Weaver v. Kendall

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 8/16/2017 ORDERING Plaintiff to submit the full filing fee of $400 within 14 days after service of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIE WEAVER,

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Plaintiff,

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No. 2:17-cv-1659 AC P

v.

ORDER

KENDALL,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed pursuant to

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42 U.S.C. § 1983. This action is referred to the undersigned United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

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Plaintiff has not paid the filing fee or requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Review of court records1 reveals that plaintiff has been designated

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a “three-strikes litigant” under 28 U.S.C. § 1915(g). See e.g. Weaver v. Attorney General, Case

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No. 2:14-cv-01132 JAM DAD P, ECF Nos. 5 & 7. This designation reflects that three or more of

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plaintiff’s prior federal lawsuits were dismissed on the grounds that they were frivolous,

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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).
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malicious, or failed to state a claim upon which relief may be granted.
As a result, plaintiff is precluded from proceeding in forma pauperis in this action unless

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he demonstrates that he was “under imminent danger of serious physical injury” at the time he

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filed his complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th

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Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th

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Cir. 2003), and ongoing, Andrews, 493 F.3d at1056. Allegations that are overly speculative or

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fanciful may be rejected. Id. at 1057 n.11. Absent a showing that plaintiff was under imminent

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danger of serious physical injury at the time he filed his complaint, he may proceed in this action

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only if he first pays the full filing fee ($400.00).

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Plaintiff is currently incarcerated at California State Prison Sacramento (CSP-SAC). In

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the instant complaint, signed and submitted by plaintiff on August 8, 2017, plaintiff alleges that

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CSP-SAC Correctional Officer Kendall, on August 7, 2017, “told plaintiff you better get the f-k

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out of here.” ECF No. 1 at 3. Plaintiff avers that he “faces a substantial risk of serious harm and

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injury here which is imminent at the time of fileing [sic].” Id. Plaintiff contends that defendant

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Kendall “should be reprimanded;” plaintiff seeks $3 million compensatory damages and $2

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million punitive damages. Id.

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These allegations fail to demonstrate that plaintiff was under imminent danger of serious

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physical injury when defendant Kendall made the alleged statement. Therefore, plaintiff must

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submit the full filing fee in order to proceed with this action.

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Accordingly, IT IS HEREBY ORDERED that plaintiff shall, within fourteen (14) days

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after service of this order, submit the full filing fee of $400.00. No extensions of time will be

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granted. Plaintiff’s failure to comply with this order will result in a recommendation that this

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action be dismissed.

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DATED: August 16, 2017

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