Ochoa v. Esquiver et al

Filing 6

ORDER DISMISSING CASE. Application to proceed IFP 1 is denied. This action shall be dismissed without prejudice. All pending motions denied without prejudice. Clerk shall send plaintiff copy of papers filed along with complaint and pauper forms and instructions for both forms (sent 11/8/13). Clerk shall enter judgment accordingly. Signed by Chief Judge Robert C. Jones on 11/7/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ARTURO TORRES OCHOA,
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Plaintiff,

3:13-cv-00500-RCJ-WGC

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vs.

ORDER

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D. ESQUIVER, et al.,
Defendants.

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This prison civil rights action comes before the Court on plaintiff’s application to
proceed in forma pauperis (#1) seeking to initiate a civil rights action.

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The pauper application is incomplete. Both a financial certificate properly completed

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and executed by an authorized institutional officer and a statement of the plaintiff’s inmate

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trust fund account for the past six months are required by 28 U.S.C. § 1915(a)(2) and Local

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Rule LSR1-2.

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requirements, attached neither.

Plaintiff, a frequent filer who repeatedly has been informed of these

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It does not appear from review of the allegations presented that a dismissal without

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prejudice of the present improperly-commenced action would lead to a promptly-filed new

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action being untimely or otherwise result in substantial prejudice.

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The Court notes in this regard that plaintiff has filed numerous meritless, frivolous

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and/or delusional actions in this district. As a result, the Court has found plaintiff subject to

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the “three strikes” provisions of 28 U.S.C. § 1915(g) in 3:10-cv-00483-ECR-VPC (#7). Under

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§ 1915(g), a prisoner who has brought three or more frivolous or meritless actions may not

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proceed in forma pauperis; and he instead must pay the full filing fee in advance, unless he

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is under imminent danger of serious physical injury.

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Plaintiff alleges in the present complaint, inter alia, that his food is being poisoned.

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This allegation of imminent danger, however, is delusional or frivolous. Plaintiff has made the

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same allegation in a number of actions. See, e.g., 3:12-cv-00285-MMD-VPC; 3:12-cv-00276-

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HDM-VPC; 3:12-cv-00239-RCJ-VPC. The Court held a hearing on the allegation in 3:12-cv-

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00239-RCJ-VPC and confirmed that the allegation indeed is wholly baseless.

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Plaintiff accordingly will sustain no substantial prejudice from the dismissal of this

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improperly commenced action without prejudice to the filing of a properly commenced action.

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IT THEREFORE IS ORDERED that the application to proceed in forma pauperis (#1)

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is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new

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complaint on the required form in a new action together with either a new pauper application

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with all required, and new, attachments or payment of the $350.00 filing fee.

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IT IS FURTHER ORDERED that all pending motions are DENIED without prejudice,
including all requests for temporary and/or preliminary injunctive relief.
The Clerk of Court shall SEND plaintiff a copy of the papers that he filed along with the
complaint and pauper forms and instructions for both forms.
The Clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: This 7th day of November, 2013.

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____________________________________
ROBERT C. JONES
Chief United States District Judge

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