Weaver v. Kendall
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-1659 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,
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
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
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 August 8, 2017, plaintiff alleges that
CSP-SAC Correctional Officer Kendall, on August 7, 2017, “told plaintiff you better get the f-k
out of here.” ECF No. 1 at 3. Plaintiff avers that he “faces a substantial risk of serious harm and
injury here which is imminent at the time of fileing [sic].” Id. Plaintiff contends that defendant
Kendall “should be reprimanded;” 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 Kendall made the alleged statement. 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
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?