Bacon v. Cox et al

Filing 5

ORDER Denying Plaintiff's 1 and 3 Motions/Applications for Leave to Proceed in forma pauperis. This action will be dismissed without prejudice unless Plaintiff pays the $400.00 filing fee in full within 30 days of entry of this Orde r. The Clerk of the Court shall retain the 1 -1 Complaint. Plaintiff's 2 Motion to Extend Prison Copy Work Limit is Denied without prejudice at this time. Signed by Judge Richard F. Boulware, II on 1/24/2018. (Copies have been distributed pursuant to the NEF - 2 copies of Order mailed to Plaintiff - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

PERCY LAVAE BACON,

10

Plaintiff,

Case No. 2:17-cv-01744-RFB-GWF
ORDER

v.
11
JAMES COX et al.,
12
Defendants.
13
14

I.

15
16
17

DISCUSSION
Plaintiff is a prisoner proceeding pro se. Plaintiff has submitted a civil rights

complaint pursuant to 42 U.S.C. § 1983 and two applications to proceed in forma
pauperis. (ECF No. 1, 1-1, 3). However, on at least three (3) occasions, this Court and

18

the Ninth Circuit Court of Appeals have dismissed civil actions commenced by Plaintiff

19

while in detention as frivolous or for failure to state a claim upon which any relief may be

20

granted. 1

21

Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions,

22

while incarcerated or detained in any facility, brought an action or appeal in a court of the

23

United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

24

state a claim upon which relief may be granted,” he may not proceed in forma pauperis

25

and, instead, must pay the full $400.00 filing fee in advance unless he is “under imminent

26
1

27
28

See Bacon v. Laswell, 2:09-cv-02058-PMP-PAL (district court dismissed case for failure
to state a claim and appellate court dismissed appeal as frivolous); Bacon v. State Of
Nevada, 2:10-cv-01451-KJD-LRL (appellate court dismissed appeal as frivolous). The
Court takes judicial notice of its prior records in the above matters.
1

1

danger of serious physical injury.” 28 U.S.C. § 1915(g).

2
3

Plaintiff submitted his complaint on June 23, 2017.

(ECF No. 1-1).

In the

complaint, Plaintiff sues various prison officials for events that took place in 2015 when

4

prison officials disciplined Plaintiff for refusing to pick up his legal mail during an excessive

5

heat warning. (See generally ECF No. 1-1). The Court finds that these allegations fail to

6

plausibly allege that Plaintiff is in imminent danger of serious physical injury.

7

Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007) (holding that the exception

8

to § 1915(g) applies if the complaint makes a plausible allegation that the prisoner faced

9

an ongoing danger of serious physical injury at the time of filing). As such, Plaintiff must

10

pre-pay the $400.00 filing fee in full.

11

II.

See

For the foregoing reasons, IT IS ORDERED that Plaintiff’s applications to proceed

12
13

CONCLUSION

in forma pauperis (ECF No. 1, 3) are denied.

14

IT IS FURTHER ORDERED that this action will be dismissed without prejudice

15

unless Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry of this

16
17
18
19
20

order.
IT IS FURHER ORDERED that the Clerk of the Court shall send Plaintiff two copies
of this order. Plaintiff shall make the necessary arrangements to have one copy of this
order attached to the check paying the filing fee.
IT IS FURTHER ORDERED that the Clerk of the Court shall retain the complaint
(ECF No. 1-1).

21
IT IS FURTHER ORDERED that the motion to extend prison copy work limit (ECF
22

No. 2) is denied, without prejudice, at this time.

23
24
DATED this 24th day of January, 2018.
25
26
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

27
28
2