Ochoa v. Baker et al

Filing 9

ORDER DISMISSING CASE without prejudice for failure to pay the filing fee. The Clerk shall enter final judgment accordingly. Signed by Judge Miranda M. Du on 07/24/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTURO TORRES OCHOA,

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Case No. 3:13-cv-00245-MMD-VPC
Plaintiff,

ORDER

v.
RENEE BAKER, et al.,
Defendant.
This prisoner civil rights action comes before the Court following plaintiff’s failure
to pay the $350.00 filing fee in response to the Court’s order of June 19, 2013.

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

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted,” he may not

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proceed in forma pauperis and instead must pay the full $350.00 filing fee in advance,

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unless he is under “imminent danger of serious physical injury.” See Andrews v. King,

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398 F.3d 1113, 1123 (9th Cir. 2005); see also Rodriguez v. Cook, 169 F.3d 1176, 1178-

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82 (9th Cir. 1999); Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).

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In the order of June 19, 2013, the Court found that, on at least three (3)

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occasions, the Court has dismissed civil actions commenced by plaintiff while in

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detention for failure to state a claim for which relief may be granted. (Dkt. no. 4.1) The

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Court denied plaintiff’s application to proceed in forma pauperis and ordered he must

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pay the full filing fee within thirty (30) days or his case would be dismissed, pursuant to

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28 U.S.C. § 1915(g). (Id.)

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Plaintiff has not paid the filing fee. Plaintiff has, however, filed four notices of

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“updated motion.” (Dkt. nos. 5, 6, 7, 8.) Only in his filing at dkt. no. 5 does plaintiff

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make an argument regarding imminent danger of physical injury. Plaintiff asserts that

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he was under imminent danger of physical injury because from August 7 through

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August 29, 2012, he was on a hunger strike. (Dkt. no. 5, at p. 1.) Plaintiff’s allegation

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regarding a hunger strike almost one year ago does not establish that plaintiff is

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currently under imminent danger of serious physical injury. Plaintiff, having failed to pay

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the filing fee for this action and having failed to demonstrate that he is under imminent

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danger of serious physical injury, has not made the showing required by 28 U.S.C. §

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1915(g) to allow his complaint to proceed.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice

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for failure to pay the filing fee. The Clerk of Court shall enter final judgment accordingly.

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DATED THIS 24th day of July 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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See Ochoa v. Cook, et al., 3:02-cv-00450-DWH-RAM; Ochoa v. Willis, et al.,
3:02-cv-00545-ECR-VPC (both dismissed for failure to state a claim upon which relief
may be granted); Ochoa v. Putter C/O, et al., 3:10-cv-00364-HDM-RAM (dismissed as
delusional and factually frivolous). The Court takes judicial notice of its prior records in
the above matters.
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