Campbell v. Vance

Full title: TONY CAMPBELL, Plaintiff, v. S.J. VANCE, et al., Defendants

Court: United States District Court, E.D. California

Date published: Nov 30, 2005

No. CIV S-05-1163 RRB GGH P (E.D. Cal. Nov. 30, 2005)

Opinion

TONY CAMPBELL, Plaintiff, v. S. J. VANCE, ¹ et al., Defendants. No. CIV S-05-1163 RRB GGH P United States District Court, E.D. California. November 30, 2005

          FINDINGS AND RECOMMENDATIONS

          GREGORY HOLLOWS, Magistrate Judge.

         Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).

         Although plaintiff has submitted an application to proceed in forma pauperis, the federal in forma pauperis statute includes a limitation on the number of actions in which a prisoner can proceed in forma pauperis.

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [§ 1915(g)] 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).

         Review of court records reveals that on at least four occasions lawsuits filed by the plaintiff in this district have been dismissed, prior to the filing of the instant case, on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted.² See Order filed June 22, 1999, in Campbell v. Butts, No. CIV F-98-6483 AWI SMS P; Order filed March 28, 2001 in Campbell v. Randalph, No. CIV F-99-5462 REC HGB P; Order filed May 23, 2005 in Campbell v. Turner, No. CIV S-05-0778 FCD DAD P; Order filed May 27, 2005 in Campbell v. Baughman, No. CIV S-05-0066 MCE DAD P.³ Plaintiff was incarcerated when he brought each of the foregoing actions.

2 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman , 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson , 631 F.2d 118, 119 (9th Cir. 1980).

3 Of these four, only one, Case No. CIV-S-05-0778 FCD DAD P, is pending appeal.

         Plaintiff, therefore, is barred from proceeding in forma pauperis unless he fits within the "imminent danger of serious physical injury" exception. A prisoner may not proceed under the exception unless he is in imminent danger of serious physical injury when he files his complaint and seeks leave to proceed in forma pauperis. See Bonnichsen v. U.S. , 367 F.3d 864, 875 n.15 (9th Cir. 2004), quoting Medberry v. Butler , 185 F.3d 1189, 1192-93 (11th Cir. 1999), and citing Malik v. McGinnis , 293 F.3d 559, 562-63 (2d Cir. 2002) and Abdul-Akbar v. McKelvie , 239 F.3d 307, 313 (3rd Cir.) (en banc), cert. denied, 533 U.S. 953 (2001); see also Ashley v. Dilworth , 147 F.3d 715, 717 (8th Cir. 1998) (per curiam); Banos v. O'Guin , 144 F.3d 883, 884-85 (5th Cir. 1998) (per curiam).

         Plaintiff alleges that he has been wrongly restricted to administrative segregation for almost a month. Plaintiff has not alleged facts that suggest he is under imminent danger of serious physical injury.

         This court finds that plaintiff is barred by the three strikes provision of the 28 U.S.C. § 1915(g) from proceeding in this action in forma pauperis. The undersigned, therefore, will recommend dismissal of this action. See Dupree v. Palmer , 284 F.3d 1234, 1236 (11th Cir. 2002) (proper procedure is to dismiss without prejudice once in forma pauperis status is denied per the three strikes provision of §1915(g) because filing fee must be paid at the initiation of the lawsuit).

         Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

         These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).