Tagle v. State of Nevada et al

Filing 10

ORDER denying Plaintiff's ECF Nos. 4 , 6 IFP applications; directing Plaintiff within 30 days to pay $400 filing fee; directing Clerk to send Plaintiff two copies of this order, one to be returned with filing fee payment ( attached hereto for transmittal to P); directing Clerk to retain complaint; denying ECF No. 5 Motion for Miscellaneous Relief. Signed by Judge Robert C. Jones on 12/6/2016. (Attachments: # 1 2nd Copy of Order) (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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VICTOR TAGLE,

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Case No. 3:16-cv-00223-RCJ-VPC
Plaintiff,

ORDER

v.
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STATE OF NEVADA et al.,
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Defendants.
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I.

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

complaint pursuant to 42 U.S.C. § 1983, two applications to proceed in forma pauperis,
and a motion for miscellaneous relief. (ECF No. 1-1, 4, 5, 6). However, on at least three

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

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detention as malicious 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,

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

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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

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state a claim upon which relief may be granted,” he may not proceed in forma pauperis

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and, instead, must pay the full $400.00 filing fee in advance unless he is “under imminent

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See Tagle v. State of Nevada et al, 2:15-cv-02083-RCJ-GWF (dismissed for failure to
state a claim); Tagle v. State of Nevada et al, 2:15-cv-02358-MMD-PAL (dismissed for
maliciousness and failure to state a claim); and Tagle v. State of Nevada et al, 2:16-cv00852-JAD-VCF (dismissed for maliciousness and failure to state a claim). The Court
takes judicial notice of its prior records in the above matters.
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danger of serious physical injury.” 28 U.S.C. § 1915(g).

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In his complaint, Plaintiff alleges that a correctional officer verbally abused him in
June 2012, that a correctional officer pretended to not know who Plaintiff was in October

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2015, that supervising correctional officers were not leading by example, and that

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correctional officers tampered with his mail. (See generally ECF No. 1-1 at 4-8). The

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Court finds that these allegations fail to plausibly allege that Plaintiff is in imminent danger

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of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir.

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2007) (holding that the exception to § 1915(g) applies if the complaint makes a plausible

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allegation that the prisoner faced imminent danger of serious physical injury at the time

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

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II.

For the foregoing reasons, it is ordered that Plaintiff’s applications to proceed in

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forma pauperis (ECF No. 4, 6) are denied.
It is further ordered that this action will be dismissed without prejudice unless

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Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry of this order.
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
attached to the check paying the filing fee.
It is further ordered that the Clerk of the Court shall retain the complaint (ECF No.

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CONCLUSION

1-1).
It is further ordered that the motion for miscellaneous relief (ECF No. 5) is denied.

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6th xx day of November, 2016.
DATED THIS XXday of December, 2016.

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UNITED STATES DISTRICT JUDGE

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