Opinion
1:11-cv-01416-GSA-PC Doc. 2.
09-02-2011
RICHARD JOSE DUPREE, JR., Plaintiff, v. MISTY MILLS, et al., Defendants.
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH
SUBMISSION OF $350.00 FILING FEE IN FULL
ORDER FOR CLERK TO CLOSE CASE
Richard Jose Dupree, Jr. ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 22, 2011, together with an application to proceed in forma pauperis. (Docs. 1, 2.)
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under this section 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." A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury.
Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are case numbers 2:11-cv-00309-EFB (ED Cal.) Dupree, Jr. vs. Santiago (dismissed on 02/22/2011 for failure to state a claim); 2:11-cv-00263-DAD (ED Cal.) Dupree, Jr. vs. U,S, Courts of the Eastern Dist. of CA (dismissed on 03/24/2011 as frivolous); and 1:11-cv-00565-OWW-DLB (ED Cal.) Dupree, Jr. vs. Scott (dismissed on 07/12/2011 for failure to state a claim).
The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff alleges in the Complaint that his identity has been stolen by Misty Mills, a woman who claims to be Plaintiff's wife and the mother of his child. Plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Therefore, Plaintiff's application to proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice to refiling with the submission of the $350.00 filing fee in full.
The Court expresses no opinion on the merits of Plaintiff's claims.
The Complaint is devoid of any showing that Plaintiff was under imminent danger of serious physical injury at the time he filed the Complaint. Id.
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Based on the foregoing, it is HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's application to proceed in forma pauperis in this action is denied;
2. This action is DISMISSED, without prejudice to refiling with the submission of the $350.00 filing fee in full; and
3. The Clerk is directed to CLOSE this case.
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE