(PC) McNeal v. Evert ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON WAYNE MCNEAL, No. 2:22-cv-1360 AC P 12 Plaintiff, 13 v. ORDER 14 B. EVERT, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 19 2. This proceeding was referred to a magistrate judge by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1)(B). 21 A review of court records reveals that on at least three occasions, lawsuits filed by the 22 plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to 23 state a claim upon which relief may be granted: 24  McNeil v. Ervin, No. 2:07-cv-2240 LKK EFB (E.D. Cal. Mar. 3, 2010) (“Ervin”) 25 (dismissed for failure to state a claim after defendants filed motion to dismiss) 26 (Ervin, ECF Nos. 16, 30, 31); 27  McNeal v. Dalu, No. 2:09-cv-1626 JAM KJM (E.D. Cal. June 29, 2010) (“Dalu”) 28 dismissed for failure to state a claim) (Dalu, ECF Nos. 25, 26); ] e McNeal v. Gonzalez, No. 1:14-cv-0030 BAM (E.D. Cal. Mar. 18, 2015) 2 (“Gonzalez”) (dismissed for failure to state a claim) (Gonzalez, ECF Nos. 20, 21), 3 and 4 e McNeal v. Cano, No. 1:14-cv-1767 DLB (E.D. Cal. Aug. 18, 2015) (“Cano”) 5 (dismissed for failure to follow court order and for failure to prosecute after initial 6 dismissal with leave to amend for failure to state a claim) (Cano, ECF Nos. 8 at 8; 7 9-11). 8 On July 20, 2020, in McNeal v. Roberts, No. 2:18-cv-2998 KJM AC P (“Roberts”), 9 || plaintiff was accordingly found to be a three-strikes litigant within the meaning of 28 U.S.C. § 10 | 1915(g). See Roberts, ECF Nos. 7, 11-13 (recommendations, declaration, judgment and order). 11 | Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless he is 12 | “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 13 The complaint does not allege any facts which suggest that plaintiff is under imminent 14 | danger of serious physical injury. See ECF No. 1. Therefore, he must submit the appropriate 15 | filing fee in order to proceed with this action. 16 Accordingly, IT IS HEREBY ORDERED that, within thirty days from the date of this 17 | order, plaintiff shall submit the appropriate filing fee. Plaintiff's failure to comply with this order 18 | will result in a recommendation that this action be dismissed. 19 | DATED: August 4, 2022 ~ Cttt0 Lhar—e_ 20 ALLISONCLAIRE. 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 76 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (holding dismissal with leave to 27 || amend for failure to state claim followed by failure to amend constitutes strike under Section 1915(g)). The style of the dismissal or of the procedural posture is immaterial. See El Shaddai v. 28 | Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016).