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Ellis v. Harper

United States District Court, Ninth Circuit, California, E.D. California
Jun 8, 2015
2:14-cv-1949 CKD P (E.D. Cal. Jun. 8, 2015)

Opinion


ROBERT J. ELLIS, Plaintiff, v. HARPER, et al., Defendants. No. 2:14-cv-1949 CKD P United States District Court, E.D. California. June 8, 2015

          ORDER

          CAROLYN K. DELANEY, Magistrate Judge.

         Plaintiff, a California prisoner proceeding pro se, has filed an action for violation of civil rights under 42 U.S.C. § 1983. While he is proceeding in forma pauperis, a recent review of court records and controlling law reveals that he is precluded from doing so.

         Title 28 U.S.C. § 1915(g) reads as follows:

In no event shall a prisoner bring a civil action... [in forma pauperis] 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.

         Plaintiff has had at least four actions dismissed for failure to state a claim in this court: 2:06-cv-0040 FCD EFB P; 2:11-cv-0363 GEB CKD P; 2:13-cv-2197 CKD P; and 2:14-cv-0705 EFB P. Plaintiff was incarcerated when he brought these actions and these actions were all dismissed before plaintiff's original complaint and request to proceed in forma pauperis were filed in this action. Also, the court has reviewed plaintiff's original complaint and first amended complaint in this action and there is no allegation that plaintiff is under imminent danger of serious physical injury.

Direct review had not concluded with respect to the latter two cases identified above when this action was filed. However, the United States Supreme Court has recently clarified that a case dismissed by a district court may amount to a "strike" under 28 U.S.C. § 1915(g) after it has been dismissed, but before the conclusion of direct review. Coleman v. Tollefson, 135 S.Ct. 1759, 1763-64 (2015).

         For the foregoing reasons, plaintiff has "struck out" under 28 U.S.C. § 1915(g) and may not proceed in forma pauperis in this action. His in forma pauperis status will be revoked and plaintiff will be given 14 days within which to pay the $400 filing fee for this action. If plaintiff does not pay the filing fee within 14 days, this action will be dismissed.

If money has already been deducted from plaintiff's trust account by prison officials and forwarded to the court to satisfy the filing fee, plaintiff may deduct that amount from the $400 he owes.

Plaintiff has consented to have all matters in this action before a United States Magistrate Judge. See 28 U.S.C. 636(c).

         Accordingly, IT IS HEREBY ORDERED that:

         1. Plaintiff's in forma pauperis status is revoked; and

         2. Plaintiff shall pay the $400 filing fee for this action within 14 days. Failure to pay the filing fee within 14 days will result in dismissal.


Summaries of

Ellis v. Harper

United States District Court, Ninth Circuit, California, E.D. California
Jun 8, 2015
2:14-cv-1949 CKD P (E.D. Cal. Jun. 8, 2015)
Case details for

Ellis v. Harper

Case Details

Full title:ROBERT J. ELLIS, Plaintiff, v. HARPER, et al., Defendants.

Court:United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 8, 2015

Citations

2:14-cv-1949 CKD P (E.D. Cal. Jun. 8, 2015)