McCallum v. Naughton

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * JAMES KENNETH MCCALLUM, Case No. 3:19-cv-00243-MMD-WGC 7 Plaintiff, THREE STRIKES ORDER v. DR. NAUGHTON, et al., 10 Defendants.

12 I. DISCUSSION 13 Pro Se Plaintiff James Kenneth McCallum submitted a civil rights complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis on May 10, 2019. (ECF Nos. 1-1, 1.) However, on at least three prior occasions, the Court has dismissed civil actions commenced by Plaintiff while in detention as frivolous or for failure to state a claim upon which any relief may be granted.1 18 Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on [three] 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).

24 In his complaint, Plaintiff seeks an extra mattress due to compression fractures and 1See McCallum v. Thompson, 2:06-cv-00456-RCJ-RJJ (dismissed as frivolous on May 24, 2006); McCallum v. Nevens, 2:13-cv-00962-JAD-NJK (dismissed for failure to state a claim on November 22, 2013); and McCallum v. Koehn, 3:16-cv-00658-MMD-VPC (dismissed for failure to state a claim on November 7, 2017). The Court takes judicial notice of its prior records in the above matters.

1 || arthritis from a fall he took over 20 years ago. (See generally ECF No. 1-1.) An extra || mattress would alleviate his pain. (/d.) The Court finds that these 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.

8 || Il. CONCLUSION 9 For the foregoing reasons, it is ordered that Plaintiff's application to proceed in || forma pauperis (ECF No. 1) is denied.

11 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.

13 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.

16 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.

18 DATED THIS 16" day of March 2020.

20 AGA 21 □□□□□□□□□□□□□□□□□□□□□□□□□□□ CHIEF UNITED STATES DISTRICT JUDGE