Davis v. Hernandez ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA BEN DAVIS, Plaintiff, v. NURSE LISA, et al., Case No. 3:23-cv-00205-JMK SUPERINTENDENT HERNANDEZ, Case No. 3:23-cv-00220-JMK et al., KIMBERLY TURNER, et al., Case No. 3:23-cv-00247-JMK Defendants. ORDER OF DISMISSAL Pending before the Court are three cases filed by self-represented prisoner Ben Davis (“Plaintiff”) as captioned above. On October 25, 2023, the Court notified Plaintiff that his filings in Case Nos. 3:23-cv-00205-JMK and 3:23-cv-00220-JMK were deficient because Plaintiff failed to include the filing fee or a completed application to waive prepayment of the filing fee in either case.1 The Court accorded Plaintiff 30 days to cure the deficiencies. Then, on November 3, 2023, the Court denied Plaintiff’s application to proceed without prepaying the filing fee in Case No. 3:23-cv-00247-JMK because Plaintiff had previously accumulated more than the three “strikes”2 permitted by 1 Docket 3. 2 The Prison Litigation Reform Act requires that self-represented prisoners receive a “strike” if the case is dismissed “as frivolous or malicious or for failure to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). A prisoner who receives more than three actions or appeals in any federal court in the United States is prohibited from bringing any other actions without the Prison Litigation Reform Act. The Court ordered Plaintiff to pay the civil filing fee within 30 days.4 In each of the above captioned cases, the Court has reviewed the filings and finds Plaintiff has not made a plausible allegation that he faced imminent danger of serious physical injury when he filed any of the above captioned cases.5 Further, to date, Plaintiff has not responded to the Court’s orders. IT IS THEREFORE ORDERED: 1. Each action is DISMISSED as deficient and for failure to comply with a Court order. 2. Any pending motions are DENIED as moot. 3. The Clerk shall issue a final judgment. DATED this 5th day of December, 2023 at Anchorage, Alaska. /s/ Joshua M. Kindred JOSHUA M. KINDRED UNITED STATES DISTRICT JUDGE prepayment of fees unless the prisoner can demonstrate that he or she is in “imminent danger of serious physical injury.” 3 Davis v. Luper, Case No. 3:20-cv-00141-SLG, Docket 4 (Order of Dismissal & Notice of Third Strike); see also prior dismissals and strikes in Davis v. State of Alaska, et al., Case Nos. 3:17- cv-00263-TMB, Dockets 8 & 9, and Davis v. State of Alaska Public Defender Agency, et al., 3:18- cv-00157-SLG, Dockets 6, 7. See also Davis v. Jones, Case No. 3:21-cv-00024-SLG (dismissing the case for failing to meet the imminent danger exception paying the full filing fee). 4 Docket 5. 5 28 U.S.C. § 1915. See also Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for the first time in the Ninth Circuit). Case No. 3:23-cv-00205-JMK, Davis v. Nurse Lisa, et al. Case No. 3:23-cv-00220-JMK, Davis v. Superintendent Hernandez, et al.