Racer v. Hays

2:10-cv-02615 | D. Ariz. | Dec 21, 2010

Case 2:10-cv-02615-DGC--LOA Document 3 Filed 12/21/10 Page 1 of 3

KM WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Frank Racer, ) No. CV 10-2615-PHX-DGC (LOA) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, ORDER vs. Officer Hays, et al.,

Defendants. Plaintiff Frank Racer, who is confined in the Arizona State Prison Complex- Alhambra, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the filing fee or filed an Application to Proceed In Forma Pauperis . I. “Three Strikes Provision” of 28 U.S.C. § 1915(g)

The Prison Litigation Reform Act of 1995 (PLRA), enacted on April 26, 1996, provides that a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “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). Because § 1915(g) is a procedural rule that does not raise retroactivity concerns, cases that were dismissed before the effective date of § 1915(g), i.e., April 26, 1996, may be counted as qualifying dismissals or “strikes.” Tierney Case 2:10-cv-02615-DGC--LOA Document 3 Filed 12/21/10 Page 2 of 3 v. Kupers, 128 F.3d 1310" date_filed="1997-10-31" court="9th Cir." case_name="97 Cal. Daily Op. Serv. 8390 v. Harold Kupers">128 F.3d 1310, 1311-12 (9th Cir. 1997). A prisoner barred from proceeding in forma pauperis pursuant to § 1915(g) may proceed under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. Adepegba v. Hammons, 103 F.3d 383" date_filed="1996-12-31" court="5th Cir." case_name="Valentino Adepegba v. Billy Hammons">103 F.3d 383, 388 (5th Cir.1996).

More than three of the prior actions Plaintiff has filed in federal courts have been dismissed as frivolous, malicious, or as failing to state a claim: (1) Racer v. Scott, CIV 01-289-PHX-ROS (LOA), April 4, 2001 Order of Dismissal (Doc. 4) and May 29, 2001 Judgment (Doc. 5) dismissing the Complaint for failure to state a claim and dismissing the action for failure to file an amended complaint;
(2) Racer v. MCauley , CIV 03-1119-PHX-DGC (LOA), February 4, 2004 Order of Dismissal (Doc. 6) and March 22, 2004 Judgment (Doc. 8) dismissing the Complaint for failure to state a claim and the action for failure to file an amended complaint; (3) Racer v. Beaty, CIV 03-1459-PHX-DGC (LOA), February 4, 2004 Order of Dismissal (Doc. 5) and March 22, 2004 Judgment (Doc. 7) dismissing the Complaint for failure to state a claim and dismissing the action for failure to file an amended complaint; (4) Racer v. Bailey, CIV 03-1460-PHX-DGC (LOA), February 4, 2004 Order of Dismissal (Doc. 4) and March 22, 2004 Judgment (Doc. 6) dismissing the Complaint for failure to state a claim and dismissing the action for failure to file an amended complaint; (5) Racer v. Earles, CIV 03-1490-PHX-DGC (LOA), March 9, 2004 Order of
Dismissal (Doc. 5) and April 23, 2004 Judgment (Doc. 7) dismissing the Complaint for failure to state a claim and dismissing the action for failure to file an amended complaint;
(6) Racer v. Marquez, CIV 03-2597-PHX-DGC (LOA), February 11, 2004 Order of Dismissal (Doc. 3) and March 29, 2004 Judgment (Doc. 5) dismissing the Complaint for failure to state a claim and dismissing the action for failure to file an amended complaint; and (7) Racer v. Pegg, CIV 08-1220-PHX-DGC (LOA), July 10, 2008 Order of Dismissal (Doc. 4) and October 31, 2008 Judgment (Doc. 6) dismissing the Complaint for failure to state a claim and dismissing he action for failure to file an amended complaint. Accordingly, Plaintiff may not bring a civil action without complete pre-payment of
the $350.00 filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Case 2:10-cv-02615-DGC--LOA Document 3 Filed 12/21/10 Page 3 of 3 II. Failure to Allege Imminent Danger of Serious Physical Injury
Plaintiff’s Complaint raises a claim of denial of access to the courts. Plaintiff has not demonstrated that he is in imminent danger of serious physical injury as required by 28 U.S.C. § 1915(g) in order for Plaintiff to bring this action without complete pre-payment of the $350.00 filing fee. Accordingly, the Complaint and this action will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g) for failure to pre-pay the $350.00 filing fee. If Plaintiff wishes to reassert these claims in the future, he must pre-pay the entire $350.00 filing fee when he files his action. IT IS ORDERED :
(1) Plaintiff’s Complaint (Doc. 1) and this action are dismissed pursuant to 28 U.S.C. § 1915(g) without prejudice to Plaintiff filing a complaint in a new case accompanied by the full $350.00 filing fee.
(2) The Clerk of Court must enter judgment and close this case. DATED this 21st day of December, 2010.