Bagby v. Nagle et al

Filing 8

ORDER OF DISMISSAL: Plaintiff's request to proceed in forma pauperis is DENIED, Docket 6 . The Clerk of Court shall enter judgment, terminate all pending motions, and close the file. Signed by Magistrate Judge Donna M. Ryu on 7/24/14. (ig, COURT STAFF) (Filed on 7/24/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 14-01896 DMR (PR)

CEDRIC BAGBY,

ORDER OF DISMISSAL

Plaintiff,
v.

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JUDGE MARGARET A. NAGLE, et al.,
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United States District Court
For the Northern District of California

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Defendants.

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Plaintiff, a state prisoner and frequent litigant in federal court, has filed a pro se civil rights

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complaint pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Dkt. 6.

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Plaintiff has consented to magistrate judge jurisdiction, dkt. 1 at 4, and this matter has been
assigned to the undersigned Magistrate Judge.
On April 26, 1996, the Prison Litigation Reform Act of 1995 ("PLRA") was enacted and

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became effective. The PLRA provides that a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis "if the prisoner has, on 3 or more prior occasions, while incarcerated or

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detained in any facility, brought an action or appeal in a court of the United States that was

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dismissed on the 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 injury." 28 U.S.C.

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§ 1915(g). The only exception to this bar is when a plaintiff is under imminent danger of serious

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physical injury. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc);

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Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717

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(8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).

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In an Order dated June 16, 2014, the Court sua sponte raised the § 1915(g) problem in the
instant case and notified Plaintiff of the earlier dismissals it considered to support a § 1915(g)

dismissal. See Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (allowing the plaintiff an

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opportunity to be heard on the matter before dismissing the action under § 1915(g)). The Court

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determined that Plaintiff has had three prior prisoner actions dismissed on the grounds that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Bagby v.

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President of Bank of America, No. 13-0225 (D.C. Feb. 22, 2013) (civil rights action dismissed for

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failure to state a claim upon which relief may be granted); Bagby v. Thaler, No. 2:13-CV-0012

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(N.D. Tex. Feb. 13, 2013) (same); Bagby v. Thaler, No. 12-2001 (D.C. Dec. 14, 2012) (civil rights

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complaint dismissed as frivolous). Because Plaintiff has had three prior dismissals and is not under

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imminent danger of serious physical injury, the Court ordered Plaintiff to show cause why the three

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United States District Court
For the Northern District of California

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aforementioned dismissals should not be counted as "strikes" to support a § 1915(g) dismissal. The

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Court informed Plaintiff that if he failed to file a response to the order to show cause within twenty-

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eight days, then this action would be dismissed without further notice to Plaintiff.

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More than twenty-eight days have passed, and Plaintiff has not responded to the Court's

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Order or otherwise communicated with the Court. Accordingly, this action is DISMISSED. See

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Fed. R. Civ. P. 41(b). The dismissal is without prejudice to Plaintiff's refiling his claims in a new

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case in which he pays the filing fee. See 28 U.S.C. § 1915(g).

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Plaintiff's request to proceed in forma pauperis is DENIED. Dkt. 6. The Clerk of Court
shall enter judgment, terminate all pending motions, and close the file.
IT IS SO ORDERED.
Dated: July 24, 2014

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DONNA M. RYU
United States Magistrate Judge

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P:\PRO-SE\DMR\CR.14\Bagby1896.DISM-1915(g).wpd

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