Opinion
Case No. 1:15-cv-01165-LJO-DLB PC
07-29-2015
WILLIE WEAVER, Plaintiff, v. GUSMAN, et al., Defendants.
ORDER DISMSSING ACTION, WITHOUT PREJUDICE, PURSUANT TO 28 U.S.C. § 1915(G)
Plaintiff Willie Weaver ("Plaintiff") is a California state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 20, 2015, and it was transferred to this Court on July 27, 2015.
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 also notes that Plaintiff has been designated as a three-strikes litigant in at least three cases.
The Court takes judicial notice of the following cases: Weaver v. California Correctional Institution Confinement SHU, Case No. 1:06-cv-00671 OWW SMS P (E.D. Cal. 2006) (dismissed July 17, 2006, as frivolous and for failure to state a claim); (2) Weaver v. California Correctional Institution Third Watch Lieutenant, 1:06-cv-00775 OWW LJO P (E.D. Cal. 2006) (dismissed July 17, 2006, as frivolous and for failure to state a claim); (3) Weaver v. California Correctional Institution, 1:06-cv-00863 OWW SMS P (E.D. Cal. 2006) (dismissed August 1, 2006, for failure to state a claim); (4) Weaver v. Appeal Coordinator, 1:06-cv-00134 OWW DLB P (E.D. Cal. 2006) (dismissed August 28, 2006, for failure to state a claim); (5) Weaver v. California Correctional Institution, 1:04-cv-06079 LJO WMW P (E.D. Cal. 2006) (dismissed December 7, 2007, for failure to state a claim).
The Court takes judicial notice of : (1) Weaver v. Gory et al., 2:09-cv-09288 UA MLG P (C.D. Cal. 2009); (2) Weaver v. California Correctional Institution et al., 1:06-cv-01429 OWW SMS P (E.D. Cal. 2007); and (3) Weaver v. Deuel Vocational Institution, 2:13-cv-01471 MCE EFB P (E.D. Cal. 2013). --------
The Court has reviewed Plaintiff's complaint and finds that it does not involve imminent danger of serious physical injury to Plaintiff. Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). Plaintiff alleges that he is an E.O.P. prisoner and was forced "to yard main line." ECF No. 1, at 3. He also alleges that Defendants Gusman, Vasquase and Bartman used excessive force against him on May 10, 2015. Plaintiff states that as of the time of the filing of his complaint, he is at risk of imminent serious injury. However, Plaintiff provides no specific information as to his claims, and his vague and conclusory allegations are insufficient to meet the imminent danger requirement.
Therefore, because Plaintiff is not in imminent danger of serious physical injury, he is not entitled to proceed in forma pauperis. Plaintiff must pay the filing fee if he wishes to litigate these claims.
Accordingly, the Court HEREBY ORDERS as follows:
1. This action is DISMISSED, without prejudice to re-filing accompanied by the $400.00 filing fee; andIT IS SO ORDERED.
2. The Clerk of the Court shall enter judgment.
Dated: July 29 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE