Cooks v. United States Court of Appeal for the Ninth Circuit et al

Filing 11

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 2/25/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/29/2016)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CHARLES REGINALD COOKS, AT7962, )
)
) No. C 16-0230 CRB (PR)
Plaintiff(s),
)
) ORDER OF DISMISSAL
vs.
)
UNITED STATES COURT OF APPEALS ) (Dkt. #10)
)
SUPERVISOR, et al.,
)
)
Defendant(s).
)

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Plaintiff, a prisoner at California State Prison, Solano and frequent litigant

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in federal court, filed a pro se complaint under 42 U.S.C. § 1983 challenging the

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allegedly unlawful actions of a court clerk. Plaintiff also sought to proceed in

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

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On January 21, 2016, the court found that 28 U.S.C. § 1915(g) bars

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

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

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

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be granted; and (2) is not seeking relief from a danger of serious physical injury

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which is imminent at the time of filing. Jan. 21, 2016 Order at 2 (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 IFP status for him.

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

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gave plaintiff 28 days to “show cause why § 1915(g) does not bar IFP status for

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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 bringing it in a new paid complaint.” Id.

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Plaintiff has responded by filing an amended complaint and a new

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prisoner’s application to proceed IFP under 28 U.S.C. § 1915. But he in no way

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shows in these filings, or anywhere else, that § 1915(g) does not bar IFP status

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for him in this prisoner action. Plaintiff’s instant prisoner action accordingly is

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DISMISSED without prejudice to bringing it in a paid complaint.

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The clerk shall enter judgment in accordance with this order, terminate all

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pending motions (see dkt. #10) as moot, and close the file.

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SO ORDERED.

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DATED: Feb. 25, 2016

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.16\Cooks, C.16-0230.dismissal.wpd

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