Davis v. Moon, et al.
Filing
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ORDER signed by District Judge Lawrence J. O'Neill on 6/2/2011 denying 2 Motion to Proceed IFP and DISMISSING CASE without prejudice to refiling with submission of $350.00 filing fee in full. CASE CLOSED.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CLYDE KENNETH DAVIS,
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CASE NO. 1:11-cv-00862-GBC-LJO PC
Plaintiff,
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v.
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ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS, AND DISMISSING ACTION,
WITHOUT PREJUDICE TO REFILING WITH
SUBMISSION OF $350.00 FILING FEE IN
FULL
J. MOON, et al.,
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Defendants.
(Docs. 1 and 2)
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/
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Plaintiff Clyde Kenneth Davis, a state prisoner proceeding pro se, filed this civil rights action
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pursuant to 42 U.S.C. § 1983 on May 26, 2011. (Doc. 1). Plaintiff seeks leave to proceed in forma
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pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2).
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Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis.
Section 1915(g) provides that:
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[i]n no event shall a prisoner bring a civil action . . . under this section 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.
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28 U.S.C. § 1915(g). Determining whether Plaintiff’s actions and appeals count as strikes under
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section 1915(g) requires the Court to conduct a “careful examination of the order dismissing an
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action, and other relevant information,” to determine if, in fact, “the action was dismissed because
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it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th
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Cir. 2005).
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A review of the record of actions filed by Plaintiff in the United States District Court reveals
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that Plaintiff filed three or more actions that were dismissed as frivolous, malicious or for failing to
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state a claim upon which relief may be granted. The Court takes judicial notice of Davis v. Navorro,
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et al., 4:06-cv-04560-PJH (N.D. Cal.) (dismissed March 16, 2009, for failure to state a claim) and
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Davis v. Johnson, et al., 3:05-cv-02060-MJJ (N.D. Cal.) (dismissed June 20, 2005, for failure to state
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a claim).
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The Court takes judicial notice of Davis v. Johnson, et al., 5:04-cv-00509-UA-MAN (C.D.
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Cal.) which was dismissed on May 10, 2004, under Heck v. Humphrey, 512 U.S. 477 (1994) for not
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stating a cognizable claim under section 1983. The Court finds that a dismissal pursuant to Heck
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counts as a strike under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based
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on a denial of “the existence of a cause of action.” Heck, 512 U.S. at 489. Additionally, several
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other courts have held that dismissals under Heck count as strikes under 28 U.S.C. § 1915(g). See
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e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule
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in Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck,
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the complaint was properly dismissed for failure to state a claim.”).
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In the dismissal orders of both the Davis v. Grannis cases, the court states: “Duplicative or
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repetitious litigation of the same causes of action brought by prisoners seeking leave to proceed in
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forma pauperis is subject to dismissal under 28 U.S.C. § 1915(e) as malicious. Similarly, an in forma
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pauperis complaint that merely repeats pending or previously litigated claims may be considered
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abusive and dismissed under the authority of § 1915.” Davis v. Grannis et al., 3:07-cv-00314-MJJ
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(Doc. 4) (internal citations omited); Davis v. Grannis et al., 3:07-cv-00154-MJJ (Doc. 6) (internal
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citations omitted). The Court finds that Davis v. Grannis et al., 3:07-cv-00154-MJJ (N.D. Cal.)
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(dismissed July 17, 2007) and Davis v. Grannis et al., 3:07-cv-00314-MJJ (N. D. Cal.) (dismissed
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July 17, 2007) were duplicative and frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n.2
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(9th Cir. 1995).
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The Court finds that Plaintiff became subject to section 1915(g) well before Plaintiff filed
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this action on May 26, 2011. The Court has reviewed Plaintiff’s complaint and finds that Plaintiff
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does not meet the imminent danger exception.1 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
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2007). Because Plaintiff alleges no facts supporting a finding that he is under imminent danger of
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serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action.
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Accordingly, it is HEREBY ORDERED that:
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1.
Plaintiff’s motion for leave to proceed in forma pauperis in this action is denied; and
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2.
This action is dismissed, without prejudice to refiling with the submission of the
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$350.00 filing fee in full.
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IT IS SO ORDERED.
Dated:
b9ed48
June 2, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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Plaintiff’s allegations concern medical related claims arising from events that occurred in 2008 in addition
to requiring a special mattress. (Doc. 1). The complaint is devoid of any showing that Plaintiff is under imminent
danger of serious physical injury. Id.
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