Opinion
Case No.: 1:13-cv-01155-SAB (PC)
05-05-2014
KIRELL TAYLOR, Plaintiff, v. D. CARTER, et al., Defendants.
ORDER VACATING ORDER GRANTING LEAVE
TO PROCEED IN FORMA PAUPERIS AND
DIRECTING CLERK OF COURT TO SERVE
ORDER ON CDCR DIRECTOR AND U.S.
DISTRICT COURT FINANCIAL DEPARTMENT
[ECF No. 9]
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, PURSUANT TO 28 U.S.C. § 1915(G)
[ECF No. 1]
Plaintiff Kirell Taylor is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on September 23, 2013. Local Rule 302.
On August 23, 2013, the Court granted Plaintiff's motion seeking leave to proceed in forma pauperis. However, following a review of cases filed by Plaintiff, it is now apparent that Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that "[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."
The Court may take judicial notice of court records, United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004), and it takes judicial notice of three actions previously filed by Plaintiff which were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. In Bettis v. Paulson, CV 09-1544-UA-CT (C.D. Cal.), Plaintiff's action was dismissed as frivolous on April 13, 2009 (what is this in reference to). In Bettis v. Blackston, 1:08-cv-01561-AWI-GSA (E.D. Cal.), Plaintiff's action was dismissed for failure to state a claim on September 11, 2009. In Taylor v. U.S. Department of State, 1:10-cv-01892-LJO-JLT (E.D. Cal.), Plaintiff's action was dismissed for failure to state a claim on November 3, 2010. See also Taylor v. Chiu, 1:11-cv-01374-AWI-JLT (denying in forma pauperis status and dismissing action without prejudice for failure to pay the filing fee pursuant to 28 U.S.C. § 1915(g).)
Plaintiff also goes by the name of Kirell Francis Bettis, identified by the same California Department of Corrections and Rehabilitation Inmate Number, T-35161.
Accordingly, prior to the date Plaintiff filed this action, he had three strikes under 1915(g), Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011) (dismissals must be final before they count as strikes), and he is precluded from proceeding in forma pauperis unless, at the time he filed suit, he was in imminent danger of serious physical injury, Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
Plaintiff's claims in this action involve the use of excessive force, retaliation, and due process allegations arising from his placement and retention in administrative segregation following the issuance of three rules violations. Thus, the Court finds that Plaintiff's complaint does not set forth any plausible allegations that at the time suit was filed, Plaintiff was facing imminent danger of serious physical injury, and Plaintiff is not eligible to proceed in forma pauperis in this action. Andrews, 493 F.3d at 1055-1056. The order granting Plaintiff's application for leave to proceed in forma pauperis shall be vacated, and this action shall be dismissed, without prejudice to refilling with the $400.00 filing fee. The Court elects to dismiss the action rather than provide Plaintiff with a limited opportunity to pay the filing fee, as there is no prejudice to Plaintiff. Plaintiff has no funds and the full $400.00 filing fee balance remains unpaid in this case.
Although Plaintiff indicates he was placed on single cell status for safety purposes following a physical altercation with a former visitor which promoted other inmates to threaten Plaintiff's safety, such actions do not form the basis of the claims presented in the complaint.
--------
Accordingly,
IT IS HEREBY ORDERED that:
1. Plaintiff is ineligible to proceed in forma pauperis in this action pursuant to 28 U.S.C. § 1915(g) and the order granting him leave to proceed in forma pauperis is VACATED;IT IS SO ORDERED.
2. The Clerk of Court shall serve a copy of this order on (1) the Director of the California Department of Corrections and Rehabilitation and (2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division; and
3. This action is dismissed, without prejudice to refiling accompanied by the $400.00 filing fee.
__________
UNITED STATES MAGISTRATE JUDGE