Ochoa v. Baker et al

Filing 3

ORDER Payment of filing fees due 9/18/2014. Clerk shall send Plaintiff two copies of this order (sent 8/19/14). Plaintiff shall make arrangements to have one copy attached to filing fee. Clerk shall retain complaint 1 -1. Signed by Judge Miranda M. Du on 8/18/14. (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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ARTURO TORRES OCHOA,

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Case No. 3:14-cv-00426-MMD-WGC
Plaintiff,

ORDER

v.
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RENEE BAKER et al.,
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Defendants.
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I.

DISCUSSION

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

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complaint pursuant to 42 U.S.C. § 1983. (Dkt. no. 1-1.) Plaintiff has not submitted an

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application to proceed in forma pauperis and has not paid the full filing fee for this case.

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On at least three (3) occasions, the Court has dismissed civil actions commenced by

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Plaintiff while in detention as frivolous or for failure to state a claim upon which any relief

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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

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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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See Ochoa v. Cook et al., 3:02-cv-00450-LRH-VPC; Ochoa v. Willis et al., 3:02cv-00545-ECR-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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malicious, or fails to state a claim upon which relief may be granted,” he may not proceed in

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forma pauperis and, instead, must pay the full $400.00 filing fee in advance unless he is

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“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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In his complaint, Plaintiff appears to allege his dissatisfaction with the prison

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food. (See generally dkt. no. 1-1.) The Court finds that these allegations fail to plausibly

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allege that Plaintiff is in imminent danger of serious physical injury. See Andrews v.

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Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding that the exception to § 1915(g)

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applies if the complaint makes a plausible allegation that the prisoner faced imminent

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danger of serious physical injury at the time of filing). To the extent that Plaintiff is

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alleging that prison officials are poisoning his food, the Court notes that Plaintiff has filed

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several complaints in the past making those same allegations and that the Court finds

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that such allegations are delusional and factually frivolous. As such, Plaintiff must pre-

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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

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of this order.

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It is further ordered that the Clerk of the Court shall send Plaintiff two (2) copies

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of this order. Plaintiff shall make the necessary arrangements to have one (1) copy of

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this order attached to the check paying the filing fee.
It is further ordered that the Clerk of the Court shall retain the complaint (dkt. no.

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1-1).

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DATED THIS 18th day of August 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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