Brooks v. Alzate ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 ANTHONY BROOKS, Case No. 3:20-cv-00135-MMD-CLB 7 Plaintiff, ORDER v. 8 ALZATE, et al., 9 Defendants. 10 11 12 I. DISCUSSION 13 Plaintiff Anthony Brooks is a prisoner proceeding pro se. On February 27, 2020, 14 Plaintiff initiated this case by submitting a notice of complaint. (ECF No. 1-1.) Plaintiff 15 eventually submitted three civil rights complaints pursuant to 42 U.S.C. § 1983 and an 16 application to proceed in forma pauperis. (ECF Nos. 4, 5, 8, 10.) 17 Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions, 18 while incarcerated or detained in any facility, brought an action or appeal in a court of the 19 United States that was dismissed on the grounds that it is frivolous, malicious, or fails to 20 state a claim upon which relief may be granted,” he may not proceed in forma pauperis 21 and, instead, must pay the full $400.00 filing fee in advance unless he is “under imminent 22 danger of serious physical injury.” 28 U.S.C. § 1915(g). 23 On at least three prior occasions, the Court has dismissed civil actions commenced 24 by Plaintiff while in detention for failure to state a claim upon which any relief may be 25 granted.1 Although these dismissals do not use the term dismissed for failure to state a 26 1See Brooks v. Washoe County Public Defender, 3:19-cv-00504-MMD-WGC 27 (dismissed on January 27, 2020 for failure to state a claim); Brooks v. Valentine, 3:19-cv- 00696-MMD-WGC (dismissed on January 27, 2020 for failure to state a claim); Brooks v. 1 claim, the Court looks to the substance of the dismissal over the form of the dismissal to 2 determine whether the prior actions “rang the PLRA bells of . . . failure to state a claim.” 3 Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (holding that “when we review a 4 dismissal to determine whether it counts as a strike, the style of the dismissal or the 5 procedural posture is immaterial. Instead, the central question is whether the dismissal 6 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’”) The Court finds 7 that these four cases were in substance dismissed for failure to state a claim and that 8 Plaintiff has at least three strikes under the PLRA. 9 In his complaints, Plaintiff sues prison officials for failing to deliver his packages to 10 him on November 18, 2019, and January 2, 2020. (ECF Nos. 4, 5, 8.) The Court finds 11 that these allegations fail to plausibly allege that Plaintiff was in imminent danger of 12 serious physical injury at the time of filing. See Andrews v. Cervantes, 493 F.3d 1047, 13 1055-56 (9th Cir. 2007) (holding that the exception to § 1915(g) applies if the complaint 14 makes a plausible allegation that the prisoner faced an ongoing danger of serious 15 physical injury at the time of filing). As such, Plaintiff must pre-pay the $400.00 filing fee 16 in full. 17 II. CONCLUSION 18 It is therefore ordered that Plaintiff’s application to proceed in forma pauperis (ECF 19 No. 10) is denied. 20 It is further ordered that this action will be dismissed without prejudice unless 21 Plaintiff pays the $400.00 filing fee in full within 30 days from the date of entry of this 22 Order. 23 It is further ordered that the Clerk of the Court will send Plaintiff two copies of this 24 Order. Plaintiff will make the necessary arrangements to have one copy of this Order 25 attached to the check paying the filing fee. 26 /// 27 (dismissed on May 29, 2020 for failure to state a claim). The Court takes judicial notice of 1 It is further ordered that the Clerk of the Court will retain the complaints (ECF Nos. 4, 5, 8) but will not file them at this time. 3 DATED THIS 3% Day of February 2021. 4 { CLO 5 MIRA DA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28