Green v. Aranas et al

Filing 18

ORDER denying 1 IFP application; directing Plaintiff to pay $400 filing fee by 4/1/2016. Signed by Judge Robert C. Jones on 2/17/2016. (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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JAMES GREEN,
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Plaintiff,
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vs.
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ROMEO ARANAS et al.,
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Defendants.
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3:14-cv-00245-RCJ-VPC
ORDER

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This is a prisoner civil rights complaint under 42 U.S.C. § 1983. The Court initially

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denied the IFP application as moot in this case when it dismissed the Complaint with prejudice

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upon screening under 28 U.S.C. § 1915A. Upon remand from the Court of Appeals, the Court

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ordered the IFP application “reinstated,” but the Court has not yet ruled on the application. The

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Court now denies the application under 28 U.S.C. § 1915(g) and defers screening of the

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Amended Complaint. Plaintiff has incurred at least three “strikes” under § 1915(g) and therefore

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may not proceed IFP absent a claim of imminent danger or injury that he does not make:

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In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section 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.

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28 U.S.C. § 1915(g).

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First, in Case No. 3:09-cv-206, Judge Reed dismissed Plaintiff’s complaint upon

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screening. Although leave to amend was given in part, the dismissal counts as a “strike” under

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§ 1915(g) because all claims were dismissed for failure to state a claim. See O’Neal v. Price, 531

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F.3d 1146, 1151–54 (9th Cir. 2008). Second, the Court of Appeals dismissed the appeal of that

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case for failure to pay filing fees after noting that the appeal was frivolous and denying IFP

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status on appeal for that reason. Dismissals under such circumstances count as “strikes” under

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§ 1915(g) because they are in substance dismissals for frivolity. See, e.g., Hafed v. Fed. Bureau

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of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (citing Thompson v. DEA, 492 F.3d 428, 433

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(D.C. Cir. 2007)). Third, in Case No. 3:14-cv-261, this Court dismissed Plaintiff’s complaint

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upon screening, with leave to amend, and dismissed an amended version of the complaint

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without leave to amend. Fourth, the Court of Appeals dismissed the appeal of that case for

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failure to pay filing fees after noting that the appeal was frivolous and denying IFP status on

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appeal for that reason.
CONCLUSION

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IT IS HEREBY ORDERED that the Application for Leave to Proceed in Forma Pauperis
is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have until April 1, 2016 to pay the filing

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fees of $400. Plaintiff’s failure to comply with this Order will result in dismissal without

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prejudice.

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IT IS SO ORDERED.
Dated this 17th day of February, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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