Ochoa v. Baker et al, No. 3:2013cv00245 - Document 9 (D. Nev. 2013)

Court Description: ORDER DISMISSING CASE without prejudice for failure to pay the filing fee. The Clerk shall enter final judgment accordingly. Signed by Judge Miranda M. Du on 07/24/2013. (Copies have been distributed pursuant to the NEF - KR)
Download PDF
Ochoa v. Baker et al Doc. 9 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 *** 12 ARTURO TORRES OCHOA, 13 14 15 16 17 18 Case No. 3:13-cv-00245-MMD-VPC Plaintiff, ORDER v. RENEE BAKER, et al., Defendant. This prisoner civil rights action comes before the Court following plaintiff’s failure to pay the $350.00 filing fee in response to the Court’s order of June 19, 2013. 19 Pursuant to 28 U.S.C. § 1915(g), “if the prisoner has, on 3 or more prior 20 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 21 court of the United States that was dismissed on the grounds that it is frivolous, 22 malicious, or fails to state a claim upon which relief may be granted,” he may not 23 proceed in forma pauperis and instead must pay the full $350.00 filing fee in advance, 24 unless he is under “imminent danger of serious physical injury.” See Andrews v. King, 25 398 F.3d 1113, 1123 (9th Cir. 2005); see also Rodriguez v. Cook, 169 F.3d 1176, 1178- 26 82 (9th Cir. 1999); Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 27 In the order of June 19, 2013, the Court found that, on at least three (3) 28 occasions, the Court has dismissed civil actions commenced by plaintiff while in Dockets.Justia.com 1 detention for failure to state a claim for which relief may be granted. (Dkt. no. 4.1) The 2 Court denied plaintiff’s application to proceed in forma pauperis and ordered he must 3 pay the full filing fee within thirty (30) days or his case would be dismissed, pursuant to 4 28 U.S.C. § 1915(g). (Id.) 5 Plaintiff has not paid the filing fee. Plaintiff has, however, filed four notices of 6 “updated motion.” (Dkt. nos. 5, 6, 7, 8.) Only in his filing at dkt. no. 5 does plaintiff 7 make an argument regarding imminent danger of physical injury. Plaintiff asserts that 8 he was under imminent danger of physical injury because from August 7 through 9 August 29, 2012, he was on a hunger strike. (Dkt. no. 5, at p. 1.) Plaintiff’s allegation 10 regarding a hunger strike almost one year ago does not establish that plaintiff is 11 currently under imminent danger of serious physical injury. Plaintiff, having failed to pay 12 the filing fee for this action and having failed to demonstrate that he is under imminent 13 danger of serious physical injury, has not made the showing required by 28 U.S.C. § 14 1915(g) to allow his complaint to proceed. 15 IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice 16 for failure to pay the filing fee. The Clerk of Court shall enter final judgment accordingly. 17 18 DATED THIS 24th day of July 2013. 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 1 See Ochoa v. Cook, et al., 3:02-cv-00450-DWH-RAM; Ochoa v. Willis, et al., 3:02-cv-00545-ECR-VPC (both dismissed for failure to state a claim upon which relief may be granted); Ochoa v. Putter C/O, et al., 3:10-cv-00364-HDM-RAM (dismissed as delusional and factually frivolous). The Court takes judicial notice of its prior records in the above matters. 2