Weaver v. Heaps et al

Filing 9

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 10/20/2014. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 10/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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WILLIE WEAVER,

No. C 14-2719 RS (PR)

Plaintiff,

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v.

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ORDER OF DISMISSAL

HEAPS, et al.,
Defendants.

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/

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights complaint under

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42 U.S.C. § 1983. He also applied to proceed in forma pauperis (“IFP”) under 28 U.S.C.

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§ 1915.

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The Court found that 28 U.S.C. § 1915(g) bars plaintiff from proceeding IFP in this

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action because plaintiff (1) has had three or more prior prisoner actions dismissed by a

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federal court on the grounds that they are frivolous, malicious, or fail to state a claim upon

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

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serious physical injury which is imminent at the time of filing. Pursuant to the law of this

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Circuit, plaintiff nonetheless was afforded an opportunity to persuade the Court that

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No. C 14-2719 RS (PR)
ORDER OF DISMISSAL

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§ 1915(g) does not bar pauper status for him. Id. (citing Andrews v. King, 398 F.3d 1113,

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1120 (9th Cir. 2005)). The Court gave plaintiff over 80 days to show cause why § 1915(g)

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does not bar pauper status for him, and explained that failure to file a timely response or to

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pay the filing fee will result in the dismissal of this action without prejudice to bringing his

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claims in a new paid complaint.

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Plaintiff has filed a response. In it, he does not challenge specifically the Court’s

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determination that each listed dismissed action counts as a strike under § 1915(g), nor does

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he allege that he is in danger of serious physical injury which was imminent at the time of

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filing. Rather, he cites general case law, none of which is applicable to the situation he faces.

United States District Court
For the Northern District of California

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

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anywhere else, that § 1915(g) does not bar pauper status for him in this prisoner action.

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Accordingly, this action is DISMISSED without prejudice to plaintiff bringing his claims in a

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new paid complaint. His motion to proceed IFP (Docket No. 3) is DENIED. The Clerk shall

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terminate any Docket No. 3, enter judgment in favor of defendants, and close the file.

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IT IS SO ORDERED.

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DATED: October 20, 2014
RICHARD SEEBORG
United States District Judge

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No. C 14-2719 RS (PR)
ORDER OF DISMISSAL