Theopric v. Woodford et al

Filing 9

ORDER DISMISSING CASE; VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS. Signed by Judge Jeremy Fogel on 10/30/08. (dlm, COURT STAFF) (Filed on 11/5/2008)

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1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THEOPRIC K. BLOODSAW, Plaintiff, vs. J. S. WOODFORD, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) No. C 07-04200 JF (PR) ORDER OF DISMISSAL; VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS Plaintiff, a California state prisoner and frequent litigant in this Court, has filed a pro se civil rights complaint pursuant to 42 U.S.C. 1983. He seeks to proceed in forma pauperis under 28 U.S.C. 1915. The complaint was dismissed with leave to amend, and Plaintiff was granted leave to proceed in forma pauperis. However, the Court reviewed Plaintiff's history of filing complaints in pro se and determined that Plaintiff may be ineligible for pauper status in this matter. (See Docket No. 9.) On August 26, 2008, the Court ordered Plaintiff to show cause why the action should not be dismissed pursuant to 28 U.S.C. 1915(g) or alternatively, pay the full filing fee within thirty days of the order. See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). The deadline has since passed, and Plaintiff has neither Order of Dismissal; Vacating Order Granting IFP Status P:\PRO-SE\SJ.JF\CR.07\Bloodsaw4200_dismissal.wpd 1 2 3 4 5 6 7 8 9 10 filed a response nor paid the full filing fee. The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It provides that a prisoner may not bring a civil action in forma pauperis under 28 U.S.C. 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. 1915(g). Section 1915(g) requires that this court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). For purposes of a dismissal that may be counted under 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little weight or importance: having no basis in law or fact," and the word "malicious" refers to a case "failed with the `intention or desire to harm another.'" Andrews, 398 F.3d at 1121. Only cases within one of these three categories can be counted as strikes for 1915(g) purposes. See id. Dismissal of an action under 1915(g) should only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim." Id. Here, plaintiff has had three or more prisoner actions/appeals dismissed by a federal court on the grounds that they are frivolous, malicious, or fail to state a claim upon which relief may be granted: (1) Bloodsaw v. Clarke, CV 04-03462 (C.D. Cal. May 20, 2004) (dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); (2) Bloodsaw v. Thomas, CV 04-02944 (C.D. Cal. May 6, 2004) (same); (3) Bloodsaw v. Herm, CV 04-02320 (C.D. Cal. Apr. 19, 2004) (same); (4) Bloodsaw v. Order of Dismissal; Vacating Order Granting IFP Status P:\PRO-SE\SJ.JF\CR.07\Bloodsaw4200_dismissal.wpd United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 Yarborough, CV 04-01110 (E) (C.D. Cal. Mar. 16, 2004) (same); (5) Bloodsaw v. Matusinka, CV 04-01108 (C.D. Cal. March 16, 2004) (dismissal based upon immunity of defendants and pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); and (6) Bloodsaw v Parker, CV 04-01100 (E) (C.D. Cal Mar. 16, 2004) (same). Plaintiff therefore may proceed in forma pauperis only if he is seeking relief from a danger of serious physical injury which is "imminent" at the time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). Plaintiff is not. Because plaintiff has had three or more prior dismissals and is not under imminent danger of serious physical injury, plaintiff is not eligible to proceed in forma pauperis on this action under 28 U.S.C. 1915(g). Accordingly, order granting leave to proceed in forma pauperis (Docket No. 3) is VACATED. The motion to proceed in forma pauperis (Docket No. 2) is DENIED. The instant action is DISMISSED without prejudice to bringing it in a paid complaint. IT IS SO ORDERED. 10/30/08 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: JEREMY FOGEL United States District Judge Order of Dismissal; Vacating Order Granting IFP Status P:\PRO-SE\SJ.JF\CR.07\Bloodsaw4200_dismissal.wpd 3

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