Arpino v. Cherry et al

Filing 9

ORDER that plaintiff's application to proceed in forma pauperis ECF No. 1 is denied; action will be dismissed without prejudice unless plaintiff pays $400.00 filing fee in full by 03/18/2018; Clerk directed to send plaintiff (2) c opies of this order (attached hereto and e-served via NNCC Law Library); plaintiff to make the necessary arrangement to have one copy of order attached to the check paying the filing fee; Clerk directed to retain the complaint ECF No. 1 . Signed by Magistrate Judge Valerie P. Cooke on 2/16/2018. (Attachments: # 1 2nd Copy of Order)(Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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3:17-cv-00527-MMD-VPC

JOHN FRANCIS ARPINO,

v.

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CHIEF JUSTICE MICHAEL A. CHERRY,

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ORDER

et al.,
Defendants.

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I.

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DISCUSSION

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John Francis Arpino (“plaintiff”) is a prisoner proceeding pro se. Plaintiff has submitted a

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civil rights complaint pursuant to 42 U.S.C. § 1983, and an application to proceed in forma

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pauperis. (ECF Nos. 1, 1-1.) The court denies plaintiff’s application to proceed in forma

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pauperis and defers its screening of plaintiff’s complaint until he has prepaid the filing fee.

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Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions, while

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

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

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which relief may be granted,” he may not proceed in forma pauperis and, instead, must pay the

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full $400.00 filing fee in advance unless he is “under imminent danger of serious physical injury.”

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28 U.S.C. § 1915(g).

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Plaintiff’s prior litigation history reveals that he has well over three “strikes.” Andrews v.

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King, 398 F.3d at 1116 n.1 (section 1915(g) “is commonly known as the ‘three strikes’ provision

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… A prisoner with three strikes or more cannot proceed IFP”). On at least four occasions, this

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court has dismissed civil actions commenced by plaintiff while in detention for failure to state a

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claim upon which any relief may be granted.1 In addition, the court is aware of three appeals

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plaintiff has filed at the United States Court of Appeals for the Ninth Circuit that were ultimately

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dismissed as frivolous.2

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Plaintiff is under no imminent danger of serious physical injury to warrant his excusal

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from paying the filing fee. Plaintiff’s complaint seeks to criminally prosecute a number of

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justices, judges and district attorneys in Nevada for, inter alia, conspiracy, obstruction of justice,

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kidnapping, and unlawful imprisonment.

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sweeping accusations, the only harm he alleges is that these public officials have discharged their

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public duties without “post[ing] a valid official surety bond” to “validate their official public

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offices.” (Id. at 6.) Even assuming plaintiff states a cognizable claim, these allegations fail to

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show that plaintiff is in imminent danger of serious physical injury. See Andrews v. Cervantes,

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

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complaint makes a plausible allegation that the prisoner faced imminent danger of serious

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physical injury at the time of filing). As such, plaintiff must pre-pay the $400.00 filing fee in full.

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Plaintiff has long exploited the privilege of proceeding in forma pauperis, so the court will not

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expend additional resources to screen plaintiff’s complaint until his payment is received.

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Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (court permission to proceed in forma

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pauperis is itself a matter of privilege and not right.”)
II.

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(See generally ECF No. 1-1). Despite plaintiff’s

CONCLUSION

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For the foregoing reasons, plaintiff’s application to proceed in forma pauperis (ECF No.

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1) is denied pursuant to 28 U.S.C. 1915(g). This action will be dismissed without prejudice

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unless plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry of this order. It

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See, e.g., Arpino v. Sandoval, 3:14-cv-00409-MMD-WGC (dismissed for failure to state a claim); Arpino v.
Sandoval, 3:14-cv-00481-MMD-WGC (same); Arpino v. Sandoval, 3:14-cv-00522-RCJ-VPC (same); Arpino v.
Sandoval, 3:14-cv-553-MMD-WGC (same). The court takes judicial notice of its prior records in the above matters.
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The court takes judicial notice of its records of the following orders issued by the Ninth Circuit to this court:
Arpino v. Howell, 3:13-cv-213-MMD-VPC (ECF No. 56); Arpino v. Sandoval, et al., 3:14-cv-00409-MMD-WGC
(ECF No. 14); Arpino v. Sandoval, 3:14-cv-00481-MMD-WGC (ECF No. 29). In all three orders, the Ninth Circuit
court found plaintiff’s appeal to be “frivolous” and denied plaintiff’s application to proceed in forma pauperis. See
El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (ruling that dismissal of appeal on grounds of frivolity
not required where court has made express finding that appeal is frivolous).

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is ordered that the Clerk of Court shall send plaintiff two copies of this order. Plaintiff shall make

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the necessary arrangements to have one copy of this order attached to the check paying the filing

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fee. It is further ordered that the Clerk of the Court shall retain the complaint (ECF No. 1-1).

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DATED: February 16, 2018.
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UNITED STATES MAGISTRATE JUDGE

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