Howell v. Wing

Opinion

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DAVID HOWELL, Case No. 3:18-cv-00423-RCJ-WGC

Plaintiff, ORDER v. WING, et. al., Defendants. Plaintiff David Howell has submitted a complaint under 42 U.S.C. § 1983, attached to an application to proceed in forma pauperis. (ECF No. 1, 1-1). Pursuant to 28 U.S.C. § 1915(g), “if [a] 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,” he may not proceed in forma pauperis and, instead, must pay the full filing fee in advance unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff has at least three strikes under 28 U.S.C. § 1915(g). See 3:04-cv-70-HDM-VPC, 3:17-cv-736-MMD-WGC, and 18-15390 (Ninth Circuit appeal). Furthermore, the Court finds that the allegations fail to plausibly allege that Plaintiff was in imminent danger of serious physical injury at the time he filed the complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding that the exception to § 1915(g) applies if the complaint makes a plausible allegation that the prisoner faced ' imminent danger of serious physical injury at the time of filing). Therefore, Plaintiff must pre-pay the filing fees in full. CONCLUSION IT IS THEREFORE ORDERED that the Application for Leave to Proceed in ° Forma Pauperis (ECF No. 1) is DENIED. IT IS FURTHER ORDERED that Plaintiff shall have thirty days to pay the $350 filing fee and the $50 administrative fee. Failure to comply may result in dismissal without prejudice without further notice. DATED THIS 23rd day of December, 2019.

. one es RICT JUDGE