Luedtke v. Drozd ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES LUEDTKE, Case No. 1:20-cv-01662-NONE-SAB 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION 13 v. SHOULD NOT BE DISMISSED FOR FAILURE TO PAY THE FILING FEE 14 DALE DROZD, et al., FOURTEEN DAY DEADLINE 15 Defendants. 16 17 James Luedtke (“Plaintiff”), a state prisoner, is appearing pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint and a motion to appoint counsel on 19 November 24, 2020. Plaintiff did not pay the filing fee or submit an application to proceed in 20 this action in forma pauperis. 21 Pursuant to 28 U.S.C. § 1915(g), “[i]n no event shall a prisoner bring a civil action . . . 22 under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or 23 detained in any facility, brought an action or appeal in a court of the United States that was 24 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 25 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 26 The Court takes judicial notice of the following cases: (1) Luedtke v. United States of 27 America, 1:99-cv-00503-UNA (D.D.C.) (dismissed 2/26/99 for failure to state a claim); 2) Luedtke v. United States of America, 1:99-cv-00513-UNA (D.D.C.) (dismissed 2/26/99 for 1 failure to state a claim); 3) Luedtke v. Posner, 1:99-cv-01695 (S.D. Ill.) (dismissed 3/22/99 for 2 failure to state a claim);1 4) Luedtke v. Obama, 1:14-cv-00389-UNA (D.D.C.) (dismissed 3 3/12/14 for failure to state a claim); 5) Luedtke v. Obama, 14-5084 (6th Cir.) (dismissing on 4 Court’s own motion on 1/14/15 under 28 U.S.C. § 1915(g) (frivolous, malicious, or failure to 5 state a claim). Prior to filing this action, Plaintiff has had at least three cases that were dismissed 6 as frivolous or for failure to state a claim. Therefore, Plaintiff is not entitled to proceed in this 7 action in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 8 1915(g). 9 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 10 the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 11 1053−55 (9th Cir. 2007). In the current complaint, Plaintiff generally alleges that District Judge 12 Drozd, and Magistrate Judges Oberto, McAuliffe, and Grosjean are denying that he has any 13 constitutional rights, dismissing his cases by rubber stamp, and reducing them to a single piece 14 of paper. 15 The allegations in the complaint are not sufficient to satisfy the exception from the three 16 strikes bar under 28 U.S.C. § 1915(g). Plaintiff’s complaint contains no allegations 17 demonstrating that he is at imminent danger of serious physical injury. Plaintiff is basically 18 alleging that he is unhappy with the manner in which his cases have been handled by various 19 judges. 20 Finding that Plaintiff is precluded from proceeding without prepayment of fees under 21 section 1915(g) and that the complaint does not allege that he is in imminent danger, IT IS 22 HEREBY ORDERED that, within fourteen (14) days of the date of service of this order, 23 Plaintiff shall either 1) show cause in writing why this case should not be dismissed for failure to 24 pay the filing fee; or 2) pay the full $400.00 initial filing fee in full to proceed with this action. 25 1 The Court also notes these cases which reflect a different prisoner number but review of the complaints demonstrate that the writing is identical to Plaintiff’s. The court also takes judicial notice that Plaintiff has been 26 found to be have three strikes by the following cases: 1) Luedtke v. Posner, 1:01-cv-00172 (S.D. Ill.) (dismissed 1/16/01 for failure to advised the court that he had “struck out”); 2) Luedtke v. O’Brien, 7:06cv00714 (W.D. Va.) 27 (dismissed 1/5/07 pursuant to 28 U.S.C. § 1915(g); 3) Luedtke v. Bertrand, 2:98-cv-00284-LA (E.D. Wis.) (dismissing case 2/1/99 pursuant to 28 U.S.C. § 1915(g); 4) Luedkte v. Bertrand, 2:98-cv-01133-RTR (E.D. Wis.) 1 | Plaintiffs failure to comply with this order will result in dismissal of this action. If, after 2 | receiving this order, Plaintiff no longer wishes to pursue this action, he shall file a notice of 3 | voluntary dismissal. 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ November 25, 2020 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28