Opinion
3:22-cv-00204-JMK
01-05-2024
CARL K. THOMPSON, Plaintiff, v. LYNNIE EINERSON, Defendant.
ORDER OF DISMISSAL & NOTICE OF STRIKE
JOSHUA M. KINDRED UNITED STATES DISTRICT JUDGE
On September 19, 2022, self-represented prisoner, Carl K. Thompson (“Plaintiff”) filed a Complaint, a civil cover sheet, and an application to waive prepayment of the filing fee. The Court screened the Complaint, found it deficient, but granted leave to amend the Complaint or provide the Court with a Notice of Voluntary Dismissal. Plaintiff timely filed a First Amended Complaint. The Court screened the First Amended Complaint, found it deficient, and found amendment would be futile. On November 30, 2023, the Court issued a Notice of Intent to Dismiss, which provided Plaintiff with 30 days to voluntarily withdraw this case to avoid receiving a strike. To date, Plaintiff has not responded.
Dockets 1-3.
Docket 5.
Docket 6.
Docket 7.
The Prison Litigation Reform Act requires that self-represented prisoners receive a “strike” if the case is dismissed “as frivolous or malicious or for failure to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). Whereas a voluntary dismissal does not count as a “strike” under 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
1. This action is DISMISSED for failure to state a claim upon which relief could be granted.
2. This dismissal counts as a “strike” against Plaintiff under 28 U.S.C. § 1915(g).
28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any federal court in the United States which are dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted, from bringing any other actions without prepayment of fees unless the prisoner can demonstrate that he or she is in “imminent danger of serious physical injury.”
3. Prisoners who receive three or more strikes cannot bring any other actions without prepaying the full filing fee unless the prisoner can demonstrate that he is in imminent danger of serious physical injury.
Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for the first time in the Ninth Circuit).
4. All pending motions are DENIED AS MOOT.
5. The Clerk of Court shall issue a final judgment.