Opinion
1:07cv1530 OWW DLB, (Document 8).
January 16, 2008
ORDER GRANTING PLAINTIFF'S REQUEST FOR EXTENSION OF TIME TO SUBMIT FILING FEE
Plaintiff James E. Smith ("Plaintiff") is a state prisoner proceeding pro se in this action filed on October 22, 2007. On October, 31, 2007, the Court issued an order finding Plaintiff ineligible to proceed in forma pauperis and requiring him to pay the $350.00 filing fee within thirty (30) days. Plaintiff was served with the motion on November 21, 2007, and the time to comply was extended accordingly.
On January 4, 2008, Plaintiff submitted a request to extend the time to file his filing fee. In his motion, makes reference to refusals by the prison trust account office to certify his application to proceed in forma pauperis. Plaintiff is reminded, though, that he is INELIGIBLE to proceed in forma pauperis and MUST submit the $350.00 filing fee to continue with this action. To the extent that Plaintiff alleges that his life is in "immediate danger of physical harm at the hands of these aggressive bullies," this allegation is not sufficient to overcome his ineligibility. Dec. 10, 2007, Motion, at 2. To satisfy the exception set forth in 28 U.S.C. § 1915(g), he must make a "plausible allegation that [he] faced `imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Given that Plaintiff's complaint concerns an allegedly incorrect charge to his prison trust account for eyeglasses, he cannot make a plausible allegation that he is in imminent danger of serious physical injury. Indeed, even in the December 10, 2007, "Motion for Injunctive and Declaratory Relief," the document in which he makes the reference to imminent danger, his complaints revolve around allegations that the prison staff took money from his mail.
Plaintiff has therefore not satisfied the exception to 28 U.S.C. § 1915(g) and to continue with this action, he must submit the $350.00 filing fee within thirty (30) days of the date of service of this order.
Failure to comply with this Order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.