Opinion
3:10-CV-00602-ECR-VPC.
May 23, 2011
ORDER
Plaintiff is a prisoner proceeding pro se and has submitted a complaint (docket #1-1) attempting to initiate a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed in forma pauperis (ECF No. 5) and was directed to pay an initial installment. He has failed to do so within the time allowed and did not seek additional time for that purpose. Having determined that dismissal of this action is proper the Court reviewed plaintiff's history with this court and discovered that on at least three (3) occasions, the Court has dismissed as frivolous civil actions commenced by plaintiff while incarcerated.
See Sonntag v. Miller; 3:10-cv-00603-RCJ-VPC; Sonntag v. Clifton, 3:08-cv-00481-LRH-RAM; Sonntag v. Woods, 3:08-cv-00120-RCJ-VPC.
Under 28 U.S.C. § 1915(g), "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 is frivolous, malicious, or fails to state a claim upon which relief may be granted," he may not proceed in forma pauperis and instead must pay the full $350.00 filing fee in advance, unless he is under imminent danger of serious physical injury. "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date" of April 26, 1996. Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
Plaintiff cannot proceed in forma pauperis in this action or any other civil action filed in any federal court because he has had three (3) or more prior actions dismissed for failure to state a claim upon which relief may be granted, or as frivolous or malicious. Plaintiff has not alleged, and the subject matter of this action does not indicate, that he is in imminent danger of serious physical injury. He must pre-pay the filing fee in full.
IT IS THEREFORE ORDERED that the Court's previous grant of leave to proceed in forma pauperis (ECF No. 5) is hereby REVOKED. plaintiff's motion to waive in forma pauperis (ECF No. 3) is DENIED. IT IS FURTHER ORDERED that this action is dismissed with prejudice for failure to comply with the previous order of the Court.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.
DATED this 20th day of May 2011.