Fernandez v. Baca et al

Filing 26

ORDER that the Application for Leave to Proceed in Forma Pauperis (ECF No. 1 ) is DENIED; Plaintiff shall have thirty to pay the filing fees; failure to comply may result in dismissal without prejudice without further notice. Signed by Judge Robert C. Jones on 5/22/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ______________________________________ ) ) KEVIN FERNANDEZ, ) ) Plaintiff, ) ) vs. ) ) ISIDRO BACA et al., ) ) Defendants. ) ) 3:16-cv-00350-RCJ-WGC ORDER 12 13 This is a prisoner civil rights complaint under 42 U.S.C. § 1983. Plaintiff Kevin 14 Fernandez has sued multiple Defendants based on alleged surreptitious poisoning of his food at 15 Northern Nevada Correctional Center. The Court previously denied Plaintiff’s application to 16 proceed in forma pauperis (“IFP”) because he had at least three “strikes” under the Prison 17 Litigation Reform Act and did not allege that he was “under imminent danger of serious physical 18 injury.” 28 U.S.C. § 1915(g). Although Plaintiff alleged surreptitious poisoning of his food, he 19 had been transferred to New Hampshire, far from the defendants, so there was no threat of 20 immediate harm. The strikes the Court found were: (1) Case No. 3:13-cv-412, in which Judge 21 Du dismissed for failure to state a claim; (2) Case No. 3:06-cv-511, in which Judge Sandoval 22 dismissed the federal causes of action for failure to state a claim and declined jurisdiction over 23 the state law claims; and (3)–(4) Case No. 1:13-cv-94 in the District of North Dakota, in which 24 the district court dismissed for failure to state a claim, and the Eighth Circuit summarily affirmed 1 of 2 1 under Eighth Circuit Rule 47A(a), indicating that the Court of Appeals found the appeal to be 2 “frivolous and entirely without merit.” The Court of Appeals reversed, ruling: (1) the Eighth 3 Circuit’s affirmance in the North Dakota case did not count as a strike, because although the 4 panel cited a circuit rule expressly applicable to appeals that are “frivolous and entirely without 5 merit,” the panel did not separately recite those words in its order; and (2) the dismissal of the 6 ‘511 Case did not count as a strike under the intervening precedent of Harris v. Mangum, 863 7 F.3d 1133 (9th Cir. 2017) because the case had been removed from state court. 8 9 In the interim, however, Plaintiff has incurred another strike, bringing the total to at least three, even discounting the two strikes previously discounted by the Court of Appeals. In Case 10 No. 1:17-cv-226 in the District of New Hampshire, the district court dismissed the federal causes 11 of action for failure to state a claim and declined jurisdiction over the state law claims. (See 12 R&R, ECF No. 16 in No. 1:17-cv-226 (D.N.H.); Order Adopting R&R, ECF No. 20 in No. 1:17- 13 cv-226 (D.N.H.)). The Court therefore again denies IFP status and defers screening. CONCLUSION 14 15 16 17 18 19 20 IT IS HEREBY ORDERED that the Application for Leave to Proceed in Forma Pauperis (ECF No. 1) is DENIED. IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days to pay the filing fees. Failure to comply may result in dismissal without prejudice without further notice. IT IS SO ORDERED. Dated this 14th day of May, 2018. May 22, 2018. 21 22 _____________________________________ ROBERT C. JONES United States District Judge 23 24 2 of 2

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