Green v. Aranas et al

Filing 20

ORDER denying 19 Motion for District Judge to Reconsider Order; dismissing case; and directing Clerk to close case. Signed by Judge Robert C. Jones on 4/12/16. (Copies have been distributed pursuant to the NEF - JC)

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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.” The Court recently denied the application under 28

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U.S.C. § 1915(g) and deferred screening of the Amended Complaint because Plaintiff had

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incurred at least three “strikes” under § 1915(g) and therefore could not proceed IFP absent a

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claim of imminent danger or injury that he did 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.

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The Court warned that it would dismiss without prejudice if Plaintiff did not pay the

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filing fees by April 1, 2014. Plaintiff has not paid the filing fees but has asked the Court to

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reconsider its previous ruling. First, Plaintiff claims that he does not have three strikes, but he

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has not explained why he believes any of the dismissals noted should not count as strikes.

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Second, Plaintiff claims the “imminent danger of serious physical injury” exception applies, but

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he alleges only a denial of a specialty medication used to treat his ongoing skin condition, not

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any danger of serious physical injury.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 19) is DENIED.

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IT IS FURTHRER ORDERED that the case is DISMISSED without prejudice, and the

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Clerk shall close the case.
IT IS SO ORDERED.
DATED: 6th 12th day of April, 2016.
Dated thisThisday of April, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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