Howell v. Beard

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * DAVID HOWELL, Case No. 3:19-cv-00202-MMD-WGC 7 Plaintiff, THREE STRIKES ORDER v. BLAIN BEARD et al., 10 Defendants.

12 On April 18, 2019, pro se Plaintiff David Howell submitted a civil rights complaint “(Complaint”) pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. (ECF Nos. 1, 1-1.) However, on at least three prior occasions, this Court and the Ninth Circuit have dismissed civil actions and appeals commenced by Plaintiff while in detention as frivolous or for failure to state a claim upon which any relief may be granted.1 17 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 $400.00 filing fee in advance unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

23 In his Complaint, Plaintiff appears to allege claims for spoliation of evidence taking place in a different civil case. (See generally ECF No. 1-1.) The Court finds that these 1See Howell v. Balaam, 3:04-cv-00070-HDM-VPC (dismissed for failure to state a claim on May 17, 2004) and Howell v. Pusich, 3:17-cv-00736-MMD-WGC (district court dismissed for failure to state a claim on March 2, 2018, and appellate court dismissed as frivolous on August 23, 2018). The Court takes judicial notice of its prior records in the above matters.

1 || allegations fail to plausibly allege that Plaintiff is in imminent danger of serious physical || injury. See Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007) (holding that || the exception to § 1915(g) applies if the complaint makes a plausible allegation that the || prisoner faced an ongoing danger of serious physical injury at the time of filing). As such, || Plaintiff must pre-pay the $400.00 filing fee in full.

6 For the foregoing reasons, it is ordered that Plaintiff's application to proceed in || forma pauperis (ECF No. 1) is denied.

8 It is further ordered that this action will be dismissed without prejudice unless || Plaintiff pays the $400.00 filing fee in full within 30 days of entry of this order.

10 It is further ordered that the Clerk of the Court will send Plaintiff two copies of this || order. Plaintiff will make the necessary arrangements to have one copy of this order || attached to the check paying the filing fee.

13 It is further ordered that the Clerk of the Court will retain the Complaint (ECF No. 1- || 1) but will not file it at this time.

15 DATED THIS 27" day of February 2020. ° Oh 17 / MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE