Ochoa v. Edwards et al

Filing 3

ORDER denying plaintiff's 1 -2 partial IFP application. Full $400 filing fee due within 30 days (by 3/21/2015). The Clerk shall send Plaintiff two copies of this order (mailed 2/19/2015), one to be returned with filing fee payment. The Clerk shall retain the complaint. Signed by Judge Miranda M. Du on 2/19/2015. (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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ARTURO TORRES OCHOA,

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Case No. 3:15-cv-00099-MMD-VPC
Plaintiff,

ORDER

v.
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T. EDWARDS 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 and a partial application to proceed in forma

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pauperis. (Dkt. no. 1-1, 1-2.) However, on at least three (3) occasions, the Court has

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dismissed civil actions commenced by Plaintiff while in detention as frivolous or for

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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

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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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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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See Ochoa v. Cook et al., 3:02-cv-450-LRH-VPC; Ochoa v. Willis et al., 3:02-cv545-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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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.

For the foregoing reasons, it is ordered that Plaintiff’s partial application to

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proceed in forma pauperis (dkt. no. 1-2) is denied.
It is further ordered that this action will be dismissed without prejudice unless

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CONCLUSION

Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry 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).
DATED THIS 19th day of February 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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