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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 WILLIE WEAVER, No. C 14-2719 RS (PR) Plaintiff, 13 14 v. 15 ORDER OF DISMISSAL HEAPS, et al., Defendants. 16 / 17 18 19 Plaintiff, a state prisoner proceeding pro se, filed this civil rights complaint under 20 42 U.S.C. § 1983. He also applied to proceed in forma pauperis (“IFP”) under 28 U.S.C. 21 § 1915. 22 The Court found that 28 U.S.C. § 1915(g) bars plaintiff from proceeding IFP in this 23 action because plaintiff (1) has had three or more prior prisoner actions dismissed by a 24 federal court on the grounds that they are frivolous, malicious, or fail to state a claim upon 25 which relief may be granted; and (2) does not appear to be seeking relief from a danger of 26 serious physical injury which is imminent at the time of filing. Pursuant to the law of this 27 Circuit, plaintiff nonetheless was afforded an opportunity to persuade the Court that 28 No. C 14-2719 RS (PR) ORDER OF DISMISSAL 1 § 1915(g) does not bar pauper status for him. Id. (citing Andrews v. King, 398 F.3d 1113, 2 1120 (9th Cir. 2005)). The Court gave plaintiff over 80 days to show cause why § 1915(g) 3 does not bar pauper status for him, and explained that failure to file a timely response or to 4 pay the filing fee will result in the dismissal of this action without prejudice to bringing his 5 claims in a new paid complaint. 6 Plaintiff has filed a response. In it, he does not challenge specifically the Court’s 7 determination that each listed dismissed action counts as a strike under § 1915(g), nor does 8 he allege that he is in danger of serious physical injury which was imminent at the time of 9 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 10 In sum, plaintiff has not shown in his response to the Court’s order to show cause, or 11 anywhere else, that § 1915(g) does not bar pauper status for him in this prisoner action. 12 Accordingly, this action is DISMISSED without prejudice to plaintiff bringing his claims in a 13 new paid complaint. His motion to proceed IFP (Docket No. 3) is DENIED. The Clerk shall 14 terminate any Docket No. 3, enter judgment in favor of defendants, and close the file. 15 IT IS SO ORDERED. 16 17 DATED: October 20, 2014 RICHARD SEEBORG United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2 No. C 14-2719 RS (PR) ORDER OF DISMISSAL

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