Larkin v. Carlson

Filing 10

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 08/27/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/28/2012)

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United States District Court
For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JETHRO L. LARKIN II,

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Plaintiff,

ORDER OF DISMISSAL

v.
JAMES CARLSON,
Defendant.
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No. C-12-2890 TEH (PR)

Plaintiff Jethro Larkin II, a state prisoner and frequent

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litigant in this Court, has filed a pro se civil rights complaint

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pursuant to 42 U.S.C. § 1983.

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pauperis pursuant to 28 U.S.C. § 1915.

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He also seeks to proceed in forma

On April 26, 1996, the Prison Litigation Reform Act of

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1995 (PLRA) was enacted and became effective.

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that a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis "if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was

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dismissed on the grounds that it is frivolous, malicious, or fails

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to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury."

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U.S.C. § 1915(g).

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plaintiff is under imminent danger of serious physical injury.

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The PLRA provides

The only exception to this bar is when a

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Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007); Abdul-

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Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc).

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In an Order to Show Cause dated July 17, 2012, the Court sua

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sponte raised the § 1915(g) problem in the instant case and notified

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Plaintiff of the earlier dismissals it considered to support a

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§ 1915(g) dismissal.

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00209-TEH (N.D. Cal. Jan. 12, 2012) (failure to state a claim);

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Larkin v. Carlson, No. CV 12-01713-TEH (N.D. Cal. April 5, 2012)

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(same); and Larkin v. Still, No. CV 12-2482-TEH (N.D. Cal. May 16,

See, e.g., Larkin v. Jeter, No. CV 12-

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2012) (same).

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grounds that qualified as § 1915(g) dismissals and did not appear to

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be under imminent danger of serious physical injury, the Court

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ordered Plaintiff to show cause why the three aforementioned

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dismissals should not be counted as "strikes" to support a § 1915(g)

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dismissal.

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2005) (allowing the plaintiff an opportunity to be heard before

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dismissing the action under § 1915(g)).

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Because Plaintiff had three prior cases dismissed on

See Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir.

On July 26, 2012, Plaintiff submitted a letter in response

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to the Court’s Order to Show Cause.1

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Plaintiff argues that his case should not be dismissed under

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§ 1915(g) because: (1) he is uneducated and does not have legal

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training; (2) he cannot afford to pay the filing fee; (3) Defendant

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James Carlson violated Plaintiff’s due process rights by

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disrespecting, insulting and ridiculing him; and (4) the Third Level

In the July 26 2012 letter,

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Plaintiff also filed letters dated July 4, 2012, August 7, 2012
and August 8, 2012. None of these letters address the issues raised
in the Order to Show Cause.

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Director’s Review of Plaintiff’s administrative claim determined

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that Defendant Carlson violated prison policy.

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None of Plaintiff’s arguments are sufficient to overcome

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dismissal under § 1915(g).

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allegation that Defendant Carlson laughed at Plaintiff when he

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received his indigent envelopes and un-lined writing papers, see

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Director’s Level Appeal, attached to Plaintiff’s complaint, does not

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indicate that he is in imminent danger of serious physical injury.

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Nothing in Plaintiff’s letter changes this finding.

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Plaintiff’s claim, based on the

Therefore, this action is DISMISSED pursuant to 28 U.S.C.

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§ 1915(g).

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(docket no. 4) is DENIED.

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bringing the claims herein in a future action in which Plaintiff

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pays the full filing fee.

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on this matter; therefore, this Order TERMINATES Plaintiff's case.

Plaintiff's application for in forma pauperis status
The dismissal is without prejudice to

The Court has rendered its final decision

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IT IS SO ORDERED.

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DATED

08/27/2012
THELTON E. HENDERSON
United States District Judge

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