Howell v. Wing ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 DAVID HOWELL, Case No. 3:18-cv-00423-RCJ-WGC 10 Plaintiff, ORDER v. 11 WING, et. al., 12 Defendants. 13 14 Plaintiff David Howell has submitted a complaint under 42 U.S.C. § 1983, attached 15 to an application to proceed in forma pauperis. (ECF No. 1, 1-1). Pursuant to 28 U.S.C. 16 § 1915(g), “if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained 17 in any facility, brought an action or appeal in a court of the United States that was 18 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 19 relief may be granted,” he may not proceed in forma pauperis and, instead, must pay the 20 full filing fee in advance unless he is “under imminent danger of serious physical injury.” 21 28 U.S.C. § 1915(g). Plaintiff has at least three strikes under 28 U.S.C. § 1915(g). See 22 3:04-cv-70-HDM-VPC, 3:17-cv-736-MMD-WGC, and 18-15390 (Ninth Circuit appeal). 23 Furthermore, the Court finds that the allegations fail to plausibly allege that Plaintiff 24 was in imminent danger of serious physical injury at the time he filed the complaint. See 25 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding that the exception to 26 § 1915(g) applies if the complaint makes a plausible allegation that the prisoner faced 27 ' imminent danger of serious physical injury at the time of filing). Therefore, Plaintiff must 2 pre-pay the filing fees in full. CONCLUSION IT IS THEREFORE ORDERED that the Application for Leave to Proceed in ° Forma Pauperis (ECF No. 1) is DENIED. 8 IT IS FURTHER ORDERED that Plaintiff shall have thirty days to pay the $350 filing fee and the $50 administrative fee. Failure to comply may result in dismissal without 8 prejudice without further notice. DATED THIS 23rd day of December, 2019. 11 . one es RICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28