Ochoa v. Baker et al
Filing
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ORDER Payment of full filing fee due within 30 days. Clerk shall send Plaintiff two copies of order (placed in mail 10/22/14). Plaintiff shall make necessary arrangements to have one copy attached to filing fee. Clerk shall retain complaint 1 -1. Signed by Judge Miranda M. Du on 10/22/14. (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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Plaintiff,
RENEE BAKER, et al.,
Defendants.
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ORDER
v.
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Case No. 3:14-cv-00541-MMD-WGC
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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malicious, or fails to state a claim upon which relief may be granted,” he may not
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See Ochoa v. Cook et al., 3:02-cv-450-LRH-VPC; Ochoa v. Willis et al., 3:02-cv00545-ECR-VPC (both dismissed for failure to state a claim upon which relief may be
granted); Ochoa v. Putter et al., 3:10-cv-00364-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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proceed in forma pauperis and, instead, must pay the full $400.00 filing fee in advance
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unless he is “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.
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It is further ordered that the Clerk of the Court shall retain the complaint (dkt. no.
1-1).
DATED THIS 22nd day of October 2014.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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