Opinion
NO. ED CV 15-1585-PSG(E)
11-23-2015
MATTHEW FRYE, JR., Plaintiff, v. JOYCE ZOLDAK, et al., Defendants.
ORDER OF DISMISSAL
BACKGROUND
Plaintiff, a federal prisoner presently incarcerated at the Summit County Jail in Akron, Ohio, filed this civil rights action on August 5, 2015. The Complaint asserts claims against federal officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
On September 15, 2015, Plaintiff filed an "Application to Proceed Without Prepayment of Fees and Affidavit" ("Application"). On September 16, 2015, the Court issued an Order granting the Application.
Under the Prison Litigation Reform Act (PLRA), Pub L. No. 104-134, 110 Stat. 1321 (1996), a prisoner may not bring a civil action in forma pauperis ("IFP") if, on three (3) or more previous occasions, the prisoner has brought an action or appeal in a court of the United States that was dismissed on the grounds that it was frivolous or malicious or failed 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); see O'Neal v. Price, 531 F.3d 1146, 1153-54 (9th Cir. 2008).
In late September of 2015, sua sponte review of the dockets of this Court and the United States District Court for the Eastern District of California suggested that Plaintiff previously had filed a number of federal actions qualifying as "strikes" under 28 U.S.C. section 1915(g). Accordingly, on September 25, 2015, the Magistrate Judge issued a Minute Order ordering Plaintiff to show cause in writing why Plaintiff's in forma pauperis status should not be revoked and why the action should not be dismissed pursuant to 28 U.S.C. section 1915(g). On October 13, 2015, Plaintiff filed a document titled "To Move In Forma Paupers," constituting Plaintiff's response to the September 25 Minute Order.
On October 30, 2015, the Court issued an "Order Revoking In Forma Pauperis Status," revoking Plaintiff's in forma pauperis status pursuant to 28 U.S.C. section 1915(g) and ordering Plaintiff to pay the full filing fee within twenty (20) days from the date of the Order if Plaintiff wished to pursue the action. The Court advised Plaintiff that failure timely to pay the full filing fee could result in the dismissal of the action. Nevertheless, Plaintiff failed to pay the full filing fee within the allotted time.
ORDER
For the foregoing reasons, the action is dismissed without prejudice for failure to pay the full filing fee in conformity with the Court's October 30, 2015 Order. See 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: November 23, 2015.
/s/_________
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE
Presented this 23rd day of November, 2015, by: /s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE