Ochoa v. Baker et al

Filing 3

ORDER directing Plaintiff to pay the full $400 filing fee within 30 days. The Clerk shall send two copies of this order to Plaintiff, one to be returned with filing fee payment (mailed 8/25/2014). The Clerk shall retain the 1 -1 complaint. (Payment of filing fees due 9/24/2014.) Signed by Judge Robert C. Jones on 8/25/2014. (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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Plaintiff,
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v.
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RENEE BAKER et al.,
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Defendants.
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___________________________________ )

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I.

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ARTURO T. OCHOA,

3:14-cv-416-RCJ-WGC
SCREENING ORDER

DISCUSSION

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

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pursuant to 42 U.S.C. § 1983. (ECF No. 1-1). Plaintiff has not submitted an application to

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proceed in forma pauperis and has not paid the full filing fee for this case. On at least three

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(3) occasions, the Court has dismissed civil actions commenced by Plaintiff while in detention

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as frivolous or for failure to state a claim upon which any relief may be granted.1

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

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

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States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

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upon which relief may be granted,” he may not proceed in forma pauperis and, instead, must

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pay the full $400.00 filing fee in advance unless he is “under imminent danger of serious

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

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See Ochoa v. Cook et al., 3:02-cv-450-LRH-VPC; Ochoa v. Willis et al., 3:02-cv-545ECR-VPC (both dismissed for failure to state a claim upon which relief may be granted);
Ochoa v. Putter et al., 3:10-cv-364-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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In his complaint, Plaintiff appears to allege his dissatisfaction with the prison food. (See

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generally ECF No. 1-1.) The Court finds that these allegations fail to plausibly allege that

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Plaintiff is in imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d

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1047, 1055 (9th Cir. 2007) (holding that the exception to § 1915(g) applies if the complaint

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makes a plausible allegation that the prisoner faced imminent danger of serious physical injury

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at the time of filing). To the extent that Plaintiff is alleging that prison officials are poisoning

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his food, the Court notes that Plaintiff has filed several complaints in the past making those

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same allegations and that the Court finds that such allegations are delusional and factually

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frivolous. As such, Plaintiff must pre-pay the $400.00 filing fee in full.

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II.

CONCLUSION

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For the foregoing reasons, it is ordered that this action will be dismissed without

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

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order.

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It is further ordered that the Clerk of the Court shall send Plaintiff two copies of this

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order. Plaintiff shall make the necessary arrangements to have one copy of this order

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attached to the check paying the filing fee.

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It is further ordered that the Clerk of the Court shall retain the complaint (ECF No. 1-1).

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Dated: This 25th day day of August, 2014.
DATED: This _____ of August, 2014.

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_________________________________
UNITED STATES DISTRICT JUDGE

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