Howell v. Beard ( 2020 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DAVID HOWELL, Case No. 3:19-cv-00202-MMD-WGC 7 Plaintiff, THREE STRIKES ORDER v. 8 9 BLAIN BEARD et al., 10 Defendants. 11 12 On April 18, 2019, pro se Plaintiff David Howell submitted a civil rights complaint 13 “(Complaint”) pursuant to 42 U.S.C. § 1983 and an application to proceed in forma 14 pauperis. (ECF Nos. 1, 1-1.) However, on at least three prior occasions, this Court and 15 the Ninth Circuit have dismissed civil actions and appeals commenced by Plaintiff while in 16 detention as frivolous or for failure to state a claim upon which any relief may be granted.1 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 In his Complaint, Plaintiff appears to allege claims for spoliation of evidence taking 24 place in a different civil case. (See generally ECF No. 1-1.) The Court finds that these 25 26 1See Howell v. Balaam, 3:04-cv-00070-HDM-VPC (dismissed for failure to state a 27 claim on May 17, 2004) and Howell v. Pusich, 3:17-cv-00736-MMD-WGC (district court dismissed for failure to state a claim on March 2, 2018, and appellate court dismissed as 28 frivolous on August 23, 2018). The Court takes judicial notice of its prior records in the above matters. 1 || allegations fail to plausibly allege that Plaintiff is in imminent danger of serious physical 2 || injury. See Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007) (holding that 3 || the exception to § 1915(g) applies if the complaint makes a plausible allegation that the 4 || prisoner faced an ongoing danger of serious physical injury at the time of filing). As such, 5 || Plaintiff must pre-pay the $400.00 filing fee in full. 6 For the foregoing reasons, it is ordered that Plaintiff's application to proceed in 7 || forma pauperis (ECF No. 1) is denied. 8 It is further ordered that this action will be dismissed without prejudice unless 9 || Plaintiff pays the $400.00 filing fee in full within 30 days of entry of this order. 10 It is further ordered that the Clerk of the Court will send Plaintiff two copies of this 11 || order. Plaintiff will make the necessary arrangements to have one copy of this order 12 || attached to the check paying the filing fee. 13 It is further ordered that the Clerk of the Court will retain the Complaint (ECF No. 1- 14 || 1) but will not file it at this time. 15 DATED THIS 27" day of February 2020. ° Oh 17 / MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28