Opinion
CV F 05 1428 AWI WMW P.
June 19, 2007
ORDER VACATING FINDINGS AND RECOMMENDATIONS AND DIRECTING PLAINTIFF TO PAY THE FILING FEE
Plaintiff, formerly an inmate in the custody of the California Department of Corrections at California Correctional Institution Tehachapi, brings this civil rights action against various correctional officials employed by the Department of Corrections. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury."
This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Williams v. Andrews, CV F 01 6222 REC HGB P; Willaims v. Wood, CV 01 6151 REC LJO P; Williams v. Rendon, CV 01 5891 AWI SMS P. Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges facts indicating that he is imminent danger of serious physical injury.
On June 21, 2006, findings and recommendations were entered, recommending that this action be dismissed for Plaintiff's failure to pay the filing fee. The recommendations was based on a finding that Plaintiff did not allege any facts indicating that he is in imminent danger of serious physical injury. A review of the record, however, reveals that this Court has not denied Plaintiff leave to proceed in forma pauperis.
In the order of January 31, 2006, the Magistrate Judge found that the allegations in the complaint alleged, at most, medical negligence. Further, Plaintiff is no longer in the custody of the California Department of Corrections, and is therefore no longer subjected to conditions of confinement, and no longer subjected to Defendants' conduct.
Accordingly, THE COURT HEREBY ORDERS that:
1. The Findings and Recommendations issued by the Magistrate Judge on June 21, 2006, are vacated; and
2. Plaintiff's application to proceed in forma pauperis is denied pursuant to 28 U.S.C. § 1915(g).
3. Plaintiff is directed to submit, within thirty days of the date of service of this order, the $250 filing fee for this action. Plaintiff's failure to do so will result in dismissal of this action for Plaintiff's failure to prosecute, pursuant to Local Rule 11-110.
IT IS SO ORDERED.