Adams v. Department of Corrections and Rehabilitation et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/14/11 DENYING 2 Motion to Proceed IFP under the three strikes provision of 28 U.S.C. § 1915(g). Plaintiff has 30 days from the entry of this order in which to submit full payment of the $350.00 filing fee. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RONALD ADAMS
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Plaintiff,
No. CIV S-11-0782 CKD P
vs.
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TIM VIRGA, et al.
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action under 42
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U.S.C. § 1983. He has filed a motion to proceed in forma pauperis. He alleges a wide range of
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retaliatory actions against him by several correctional officers at California State Prison-
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Sacramento (CSP-Sacramento).
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The “three strikes” provision of the Prison Litigation Reform Act (PLRA)
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empowers a court to deny in forma pauperis status to a litigant who has had three prior actions
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“dismissed on the grounds that [they are] frivolous, malicious, or fail[] to state a claim upon
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which relief may be granted.” 28 U.S.C. § 1915(g). An action meets this standard if it is “based
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on an indisputably meritless legal theory” or its “factual contentions are clearly baseless.
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Examples of the former class are claims against which... the defendants are immune from suit
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and claims of infringement of a legal interest which clearly does not exist.” Neitzke v. Williams,
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490 U.S. 319, 327 (1989) (internal citation omitted). The bar does not apply if a plaintiff can
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demonstrate that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).1
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Review of court records shows that on at least two occasions this court has
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revoked plaintiff’s in forma pauperis status because his record of filing federal complaints runs
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afoul of the “three strikes” provision of the PLRA.2 See Adams v. Carcy, et al., Civil Action No.
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2:07-cv-1878 JAM KJM P (Docket Nos. 31 and 38); Adams v. Dept. of Corrections, et al., Civil
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Action No. 1:07-cv-0791 AWI GSA P (Docket Nos. 39 and 45). His status with this court now,
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therefore, is that of a “three strikes” violator. Plaintiff concedes as much on page 30 of his
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complaint, where he explicitly invokes the “imminent danger” exception to the PLRA. He states
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that imminent danger exists because prison officials will allegedly continue a pattern of
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retaliation through the filing of false rules violation reports, the taking of his personal property,
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and “the setting of prison assaults.” Complaint at 30.
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The only plausible basis of finding imminent danger is plaintiff’s prediction that
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defendants will set him up for assaults by other prisoners. This allegation must be put in the
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context of the entire complaint, which exhaustively describes “breaches of security” in which
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members of rival racial groups were allowed in close proximity to each other or intermingled in
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violation of rules designed to prevent violence between the groups. The court does not doubt
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that such rules exist, and it takes the complaint’s allegations of “breaches of security” and
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resulting violence at face value. However, plaintiff has made no showing that he was ever “set
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up” as the target of any violence or “breach of security” that took place. Instead, he casts himself
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as a bystander when correctional officers allegedly allowed violence to break out. He has given
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“The statute contemplates that the ‘imminent danger’ will exist contemporaneously with
the bringing of the action.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.), cert. denied,
533 U.S. 953 (2001). “Imminent” means “about to occur at any moment or [] impending.” Id. at
315; see also Oxford English Dictionary, available at http://dictionary.oed.com (“close at hand in
its incidence; coming on shortly”).
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The court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986).
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the court no basis on which it could apply the “imminent danger” exception specifically to him.
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Because the court finds the “imminent danger” exception is inapplicable, the
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motion to proceed in forma pauperis will be denied under 28 U.S.C. § 1915(g). Plaintiff will
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have thirty days in which to pay the filing fee of $350.00 in full. Failure to submit full payment
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will result in dismissal of this case without prejudice.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The motion to proceed in forma pauperis (Docket No. 2) is denied under the
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“three strikes” provision of 28 U.S.C. § 1915(g).
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2. Plaintiff has thirty days from the entry of this order in which to submit full
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payment of the $350.00 filing fee. Failure to do so will result in dismissal of this case without
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prejudice.
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Dated: November 14, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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