Hart v. Miliner et al

Filing 8

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 5/9/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 5/12/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLETE REO HART, P82312,
Plaintiff(s),

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vs.
P. MILINER, et al.,
Defendant(s).

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No. C 14-0920 CRB (PR)
ORDER OF DISMISSAL

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Plaintiff, a prisoner at Salinas Valley State Prison and frequent litigant in

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federal court, filed a pro se complaint under 42 U.S.C. § 1983 alleging improper

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deprivation of administrative appeals and legal process. He also sought to

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proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.

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Per order filed on April 24, 2014, the court found that 28 U.S.C. § 1915(g)

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bars plaintiff from proceeding IFP in this action because plaintiff: (1) has had

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three or more prior prisoner actions dismissed by a federal district court on the

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grounds that they are frivolous, malicious, or fail to state a claim upon which

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relief may be granted; and (2) does not appear to be seeking relief from a danger

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of serious physical injury which is imminent at the time of filing. Docket #6 at 2

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(citing cases).

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Pursuant to the law of the circuit, plaintiff nonetheless was afforded an

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opportunity to persuade the court that § 1915(g) does not bar pauper status for

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him. Id. (citing Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005)). The

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court gave plaintiff 30 days to “show cause why § 1915(g) does not bar pauper

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status for him,” and explained that “[f]ailure to show cause, or pay the requisite

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$ 400.00 filing fee, within the designated time will result in the dismissal of this

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action without prejudice to [his] bringing it in a new paid action.” Id. at 2-3.

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Plaintiff has responded by filing a letter in which he asserts that he was

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“heavily medicated” when he filed most the 2005 and 2006 cases now deemed

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“strikes,” and that at that time, “in the early 2000’s,” he was “definitely ‘under

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imminent danger’ . . . of ‘serious physical injury’” because he was “assaulted

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more than five times.” Docket #7 at 1, 3. Unfortunately for plaintiff, that he may

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have been medicated at the time that he filed the 2005 and 2006 cases now

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deemed “strikes” does not excuse the fact that he filed three or more prior

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prisoner cases dismissed by a federal district court on the grounds that they are

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“frivolous, malicious, or fail[] to state a claim upon which relief may be granted,”

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28 U.S.C. § 1915(g). After all, plaintiff’s proposed excuse – being heavily

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medicated in 2005 and 2006 – seems hardly persuasive when plaintiff now –

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presumably no longer heavily medicated – again is trying to file many of the

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same cases previously dismissed as frivolous, malicious or for failure to state a

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claim. And that plaintiff may have been under imminent danger of serious

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physical injury in the early 2000’s in no way shows that in this action he is

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seeking relief from a danger of serious physical injury which was imminent at the

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time of filing. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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In sum, plaintiff has not shown in his response to the court’s order to show

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cause, or anywhere else, that § 1915(g) does not bar pauper status for him in this

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prisoner action. Plaintiff’s instant prisoner action accordingly is DISMISSED

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without prejudice to bringing it in a new paid action.

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The clerk shall enter judgment pursuant to this order and close the file.

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SO ORDERED.

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DATED:

May 9, 2014
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.14\Hart, C.14-0920.dismissal.3strikes.wpd

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