Glenn v. Plaid Pantry Convience Store Portland, Oregon S.E. 12 and Stark

Filing 5

Order: This action is DISMISSED. Signed on 01/24/2018 by Judge Ann L. Aiken. (copy of order mailed to plaintiff) (jw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

MELREE LAREA GLENN,

Case No. 3:17-cv-02015-AA

Plaintiff,

ORDER

v.

PLAID PANTRY CONVENIENCE
STORE,
Defendant.

AIKEN, District Judge:
Plaintiff, an inmate currently housed at Two Rivers Correctional Institution, files this
action pursuant to 42 U.S.C. § 1983 and applies to proceed in forma pauperis (IFP). However, at
the time plaintiff filed the instant complaint, plaintiff had filed more than three actions in this
District that were dismissed for failure to state a claim and/or as frivolous. Accordingly, plaintiff
is not entitled to proceed IFP, and he must submit the full $400.00 fee to proceed with this
action. Alternatively, plaintiff must explain why he is not barred from proceeding IFP despite the
cases that were dismissed for failure to state a claim and/or as frivolous.

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ORDER

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A prisoner may not proceed IFP - without paying the requisite filing fee - if "the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Generally, a
case dismissed for the reasons set forth in § 1915(g) is considered a "strike" against the prisoner,
with three "strikes" prohibiting IFP status. Andrews v. Cervantes, 493 F .3d 104 7, 1049 (9th Cir.
2007) (referring to § 1915(g) as the "three-strikes rule").
Prior to filing the instant complaint, plaintiff had filed eighteen cases while incarcerated,
and seventeen cases were dismissed for failure to state a claim and/or as frivolous:

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1. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01317-AA (dismissed on November
14, 2017 for failure to state a claim);
2. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01325-AA (dismissed on October 17,
2017 for failure to state a claim);
3. Glenn v. United States of America, et al., Case No. 3:17-cv-01346-AA (dismissed on
October 17, 2017 for failure to state a claim);
4. Glenn v. United States of America, et al., Case No. 3:17-cv-01347-AA (dismissed on
October 17, 2017 for failure to state a claim and as frivolous);
5. Glenn v. United States of America, et al., Case No. 3: 17-cv-01348-AA (dismissed on
October 17, 2017 for failure to state a claim and as frivolous);
6. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01374-AA (dismissed on October 17,
2017 for failure to state a claim);
7. Glenn v. State of Oregon, etal., Case No. 3:17-cv-01375-AA (dismissed on October 17,
2017 for failure to state a claim and as frivolous);
8. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01376-AA (dismissed on October 17,
2017 for failure to state a claim);

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The remaining case was dismissed on grounds of jurisdiction and comity.

ORDER

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9. Glenn v. State of Oregon, et al., Case No. 3: 17-cv-01377-AA (dismissed on October 17,
2017 for failure to state a claim);
10. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01378-AA (dismissed on October 17,
2017 for failure to state a claim);
11. Glenn v. United States of America, et al., Case No. 3:17-cv-01379-AA (dismissed on
October 17, 2017 for failure to state a claim);
12. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01380-AA (dismissed on October 17,
2017 for failure to state a claim);
13. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01576-AA (dismissed on October 17,
2017 for failure to state a claim);
14. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01616-AA (dismissed on October 17,
2017 for failure to state a claim);
15. Glenn v. State of Oregon, et al., Case No. 3:17-cv-01633-AA (dismissed on October 24,
2017 for failure to state a claim and as frivolous);
16. Glenn v. State of Oregon, et al., Case No. 3: 17-cv-01634-AA (dismissed on October 24,
2017 for failure to state a claim and as frivolous);
17. Glenn v. State of Oregon, et al., Case No. 6:17-cv-01922-AA (dismissed on December 7,
2017 for failure to state a claim).
Accordingly, plaintiff has accumulated more than three strikes, and he may not proceed
IFP unless he was under "imminent danger of serious physical injury" at the time he brought the
current action. 28 U.S.C. § 1915(g); Andrews, 493 F.3d at 1053. Here, plaintiff does not allege
imminent danger or injury; rather, he alleges that an employee of defendant did not properly
identify plaintiff before he was cited for theft in 2016.
Normally, the court would allow plaintiff to submit the filing fee to proceed with this
action or explain why the above-named actions should not count as "strikes" precluding IFP
status. See In re Pauline, 2015 WL 1349649, at *2 (D. Haw. Mar. 24, 2015) ("The district court
may dismiss sua sponte an action that is barred by § 1915(g) after notifying the prisoner of the

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ORDER

strikes it considers to support such a dismissal, and affording the prisoner an opportunity to be
heard before dismissal.").
However, as plaintiff has been advised previously, a private party such as Plaid Pantry
generally cannot be sued under § 1983. Even if plaintiff pays the filing fee, he fails to state a
claim and amendment would be futile. Accordingly, this action is dismissed.
CONCLUSION
This action is DISMISSED.
IT IS SO ORDERED.
DATED thisa!Jday of January, 2018.

Ann Aiken
United States District Judge

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