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

Filing 7

ORDER DENYING re 2 to PROCEED IN FORMA PAUPERIS filed by Charles Reginald Cooks. Signed by Judge Charles R. Breyer on 1/19/2016. (beS, COURT STAFF) (Filed on 1/21/2016)

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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, )
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Plaintiff(s),
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vs.
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UNITED STATES COURT OF APPEALS )
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SUPERVISOR, et al.,
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Defendant(s).
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No. C 16-0230 CRB (PR)
ORDER DENYING LEAVE
TO PROCEED IN FORMA
PAUPERIS
(Dkt. #2)

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

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in federal court, has filed a pro se civil rights complaint under 42 U.S.C. § 1983

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challenging the allegedly unlawful actions of a court clerk. Plaintiff also seeks to

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

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The Prison Litigation Reform Act (PLRA) was enacted, and became

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effective, on April 26, 1996. It provides that a prisoner may not bring a civil

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action or appeal a civil judgment under 28 U.S.C. § 1915 “if the prisoner has, on

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3 or more prior 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 dismissed on the

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief

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may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g). “Section 1915(g)’s cap on prior dismissed claims

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applies to claims dismissed both before and after the [PLRA’s] effective date.”

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Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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Plaintiff 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

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claim upon which relief may be granted. See, e.g., Cooks v. Mitchell, No. CV

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15-9147 BRO(SP) (C.D. Cal. Dec. 21, 2015) (order of dismissal and noting prior

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strikes); Cooks v. Hernandez, No. CV 15-6537 BRO (SP) (C.D. Cal. Sept. 10,

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2015) (same); Cooks v. Los Angeles Police Dep’t, No. CV 15-3844 BRO (SP)

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(C.D. Cal. May 29, 2015) (same); Cooks v. Pym, No. CV 15-3149 DDP (C.D.

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Cal. May 12, 2015) (same); Cooks v. Los Angeles Police Dep’t, No. CV 15-0675

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BRO (SP) (C.D. Cal. Feb. 5, 2015) (same); Cooks v. Los Angeles Superior

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Court, No. CV 14-9828 BRO (SP) (C.D. Cal. Jan, 12, 2015) (same); see also

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Cooks v. Baca, No. CV 15-0048 BRO (SP) (C.D. Cal. May 8, 2015) (order

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revoking IFP on basis of prior strikes and summarily dismissing action). Plaintiff

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therefore may proceed IFP only if he is seeking relief from a danger of serious

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physical injury which was “imminent” at the time of filing. See Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). He is not. Plaintiff’s request to

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proceed IFP (dkt. #2) accordingly is DENIED.

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Under the law of the circuit, plaintiff must be afforded an opportunity to

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persuade the court that § 1915(g) does not bar IFP status for him. See Andrews

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v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). Within 28 days of this order,

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plaintiff may show cause why § 1915(g) does not bar IFP status for him. Failure

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to show cause, or pay the requisite $ 400.00 filing fee, within the designated time

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will result in the dismissal of this action without prejudice to bringing it in a new

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paid complaint.

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SO ORDERED.

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DATED: Jan. 19, 2016

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CHARLES R. BREYER
United States District Judge
G:\PRO-SE\CRB\CR.16\Cooks, C.16-0230.3strikes_IFPdenial.wpd

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