JOSEPH v. NOGUCHI

No. 2:17-cv-01193 AC P.

ALONZO JAMES JOSEPH, Plaintiff, v. V. NOGUCHI, Defendant.

United States District Court, E.D. California.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Alonzo James Joseph, Plaintiff, Pro Se.


ORDER

ALLISON CLAIRE, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has requested leave to proceed in forma pauperis. ECF No. 2. Under Title 28 U.S.C. § 1915(g):

In no event shall a prisoner bring a civil action . . . [in forma pauperis] 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.

Court records indicate that plaintiff has previously had three cases dismissed at the screening stage for failure to state a claim. They are: (1) Joseph v. California Prison Industry Authority et al., Case No. 2:13-cv-00122 CKD, 2013 U.S. Dist. LEXIS 78588 (E.D. Cal. June 4, 2013); (2) Joseph v. Smith, Case No. 2:12-cv-01935 CMK, 2016 U.S. Dist. LEXIS 23324 (E.D. Cal. Feb. 25, 2016); and (3) Joseph v. Heatley, et al., Case No. 2:13-cv-00879 CMK, 2016 U.S. Dist. LEXIS 129994 (E.D. Cal. Sep. 22, 2016).

Plaintiff would still be entitled to proceed in forma pauperis if his complaint indicated that he was in imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1049-1050 (9th Cir. 2007). His allegations do not indicate such danger, however. Instead, he claims that: (1) the defendant falsely accused him of a sex act; (2) this false accusation resulted in his "shame, humiliation, and belittlement";1 and (3) he was denied due process rights with respect to his "CDCR 115 reports." ECF No. 1 at 3-5.

In light of the foregoing, plaintiff's request to proceed in forma pauperis will be denied. Plaintiff will be granted thirty days to pay the filing fee for this action. If he fails to do so, this action may be dismissed.

Accordingly, it is ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is denied;

2. Plaintiff is granted thirty days within which to pay the $400 filing fee for this action. Failure to pay the filing fee within thirty days will result in a recommendation that this action be dismissed.

FootNotes


1. Plaintiff does allege that he was almost "assaulted or killed" as a result of defendant's accusation. ECF No. 1 at 4. He provides no detail as to the nature of this assault, nor does he offer any specific allegation that he is in danger of being assaulted in the future. These claims are insufficient to give rise to an inference that plaintiff is in imminent physical danger.

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