Opinion
CV F-02-6368 REC DLB P.
October 19, 2005
Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On Ocotber 24, 2002, plaintiff filed the original complaint in this action. On February 25, 2003, the court issued an order granting plaintiff leave to proceed in forma pauperis in this action.
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 record of actions filed by plaintiff in the United States District Court for the Eastern District of California reveals that plaintiff filed three or more actions that were dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted. Plaintiff has been subject to section 1915(g) since March 22, 2002, and is precluded from proceeding in forma pauperis in any action filed after that date unless plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury. The court has reviewed plaintiff's complaint and finds that plaintiff has not alleged any facts that support a finding that he is, at this time, under imminent danger of serious physical injury. Thus, plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action. Because the court previously granted plaintiff leave to proceed in forma pauperis in this action, the court recommends that plaintiff's in forma pauperis status be revoked and plaintiff be ordered to submit the filing fee in full within thirty days.
To date, plaintiff has filed twelve cases in this district. Among the dismissals suffered by plaintiff that count as strikes under 1915(g) are Million v. Crowell, CV-F-99-5972-OWW-HGB-P,Million v. Davis, CV-F-00-6117-AWI-HGB-P, and Million v. Ortiz, CV-F-02-5046-REC-DLB-P.
Accordingly, based on the foregoing, the court HEREBY RECOMMENDS that:
1. Pursuant to 28 U.S.C. § 1915(g), plaintiff's in forma pauperis status in this action be revoked;
2. Plaintiff be ordered to submit the $150.00 filing fee in full within thirty (30) days; and
3. If plaintiff fails to pay the $150.00 filing fee in full within thirty (30) days, this action be dismissed, without prejudice.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.