Houston v. Offenders Management Division

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BRICK HOUSTON, Case No.: 2:20-cv-01453-JAD-DJA

4 Plaintiff

5 v. Order Denying IFP Status and Requiring Payment of the Full $400 Filing Fee 6 OFFENDERS MANAGEMENT DIVISION, by July 19, 2021 et al., 7

8 Defendants

10 Plaintiff and Nevada state inmate Brick S Houston brings this lawsuit to redress civil- 11 rights violations that he claims occurred during his incarceration in the Nevada Department of 12 Corrections. Although he applies to proceed in forma pauperis (IFP), his history of filing 13 frivolous and meritless actions in federal court precludes him from obtaining pauper status for 14 this case. As 28 U.S.C. § 1915(g)—also known as the three-strikes provision of the IFP rule— 15 provides, “if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 16 facility, brought an action or appeal in a court of the United States that was dismissed on the 17 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,” 18 he may not proceed in forma pauperis and, instead, must pay the full filing fee in advance unless 19 he is “under imminent danger of serious physical injury.”1 Whether an inmate is under such 20 imminent danger is assessed from the allegations in the complaint.2 21 1 28 U.S.C. § 1915(g). 22 2 See Andrews v. Cervantes, 493 F.3d 1047, 1052–55 (9th Cir. 2007) (holding that the availability of the imminent-danger exception to three strikes rule is to be assessed based on 23 alleged conditions at the time the complaint is filed regardless of whether imminent danger exists at an earlier or later time). 1 Plaintiff has at least three strikes under 28 U.S.C. § 1915(g), as at least three of his 2|| previous inmate lawsuits were dismissed as frivolous or for failure to state a claim upon which 3}| relief may be granted.* His allegations also fail to plausibly allege that he was in imminent 4|| danger of serious physical injury at the time he filed his complaint. As a result, he must pre-pay 5|| the full $400 filing fee if he desires to proceed with this lawsuit. 6 CONCLUSION 7 IT IS THEREFORE ORDERED that the application for leave to proceed in forma 8|| pauperis [ECF No. 4] is DENIED. Plaintiff has until July 19, 2021, to pay the entire $400 fee. If he fails to pay the full $400 fee by July 19, 2021, this case will be dismissed without 10]| preyudice and without further prior notice. 11 Dated: June 18, 2021 RS U.S. District Judge 13 14 15 16 17 18 19 0 > See Houston v. McGinnis, et al., 1:92-cv-280-RHB-JGS (W.D. Mich. 1992) (complaint dismissed as frivolous on May 11, 1992); Houston v. Vidor, et al., 4:92-cv-35-BFG-HWB 1 (W.D. Mich. 1992) (complaint dismissed as frivolous on April 24, 1992); and Houston v. Skulnick, et al., 3:07-cv-00459-BES-VPC (D. Nev. 2007) (complaint dismissed for failure 99] to state a claim on October 23, 2007). The Court takes judicial notice of its prior records in these matters and notes that, under Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1997), actions 3 dismissed for frivolity, maliciousness, or for failure to state a claim prior to the effective date of the Prison Litigation Reform Act of 1996 are included in the 28 U.S.C. § 1915(g) calculation for three strikes. /d. at 1311.