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Peter Ray Tia, #A1013142 v. Dovie Borges

April 27, 2012

PETER RAY TIA, #A1013142,
PLAINTIFF,
v.
DOVIE BORGES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER DENYING IFP APPLICATION AND DISMISSING ACTION

Before the court is pro se Plaintiff Peter Ray Tia's prisoner civil rights Complaint and in forma pauperis ("IFP") application. ECF #1, #3. Plaintiff alleges state agencies, employees, and private individuals have engaged in a conspiracy to violate his constitutional rights since 2008. See generally, ECF #1, Compl.

For the following reasons, Plaintiff's IFP application is DENIED and this action is DISMISSED without prejudice to Plaintiff's filing a new action accompanied by the statutory filing fee.

I. DISCUSSION

On March 29, 2012, the court ordered Plaintiff to show cause why he should be allowed to proceed IFP in this action in light of his numerous prior dismissals and apparent 3-strike bar under 28 U.S.C. § 1915(g). ECF #4 ("OSC").

On April 20, 2012, Plaintiff responded to the OSC. ECF #15 (Motion to Order IFP and Respond to 3-29-12 Order to Show Cause).

A. 28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g); Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

Determining whether a prisoner's actions count as

strikes under section 1915(g) requires the court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if the action was "dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). "In some instances, the district court docket records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike." Id. at 1120. Andrews therefore allows the court to raise sua sponte the § 1915(g) problem, and the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not bar pauper status for him. Id.

B. Plaintiff's Prior Dismissals

The federal courts' electronic case database, available at: http://pacer.psc.uscourts.gov ("PACER"), reveals that Plaintiff has filed numerous federal civil actions that were dismissed as frivolous or as failing to state a claim.*fn1 Several of these actions explicitly informed Plaintiff that they constituted a strike or that he had already accrued three strikes. See Andrews, 398 F.3d at 1120 (requiring defendants or the court to notify a plaintiff of dismissals supporting a § 1915(g) dismissal before granting defendants' motion to revoke IFP and dismiss case). The court also notified Plaintiff of these strikes in the OSC. See ECF #4. Because Plaintiff has three strikes, he may not bring a civil action without prepayment of the $350.00 filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

C. Plaintiff Fails to Demonstrate Imminent Danger of Serious Physical Injury

Plaintiff's complaint alleges a conspiracy to deprive him of his constitutional rights, including alleged obstruction of justice, theft, grievance misconduct, denial of parole, access to the courts, and due process. See generally, ECF #1, Compl. Plaintiff does not, however, present facts that support a finding of imminent danger of ...


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