Opinion
No. Civ. S 05-0923 LKK PAN P.
December 27, 2005
Findings and Recommendations
Plaintiff is a state prisoner without counsel prosecuting a civil rights action. Plaintiff seeks leave to proceed in forma pauperis.
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.28 U.S.C. § 1915(g).
This action would "commence," for the purposes of § 1915(g) analysis, when this court grants permission to proceed in forma pauperis. On three prior occasions, actions brought by plaintiff (under his former name) in this court have been dismissed as frivolous, malicious, or failing to state a claim.See Greene v. Reyes, Civ. S 00-0196 LKK DAD P; Greene v. State of California, Civ. S 02-2398 FCD PAN P; Greene v. California Dept. of Corrections, Civ. S 04-1217 DFL KJM P. Plaintiff makes no showing he is under imminent danger of serious physical injury.
Section 1915(a)(1) requires plaintiff seek an order authorizing "commencement" of a suit in forma pauperis. "Bringing" and "commencing" suit are the same thing. Black's Law Dictionary, Rev'd. 4th ed. (1968) p. 335 ("To `bring' a suit is an equivalent term; an action is `commenced' when it is `brought' and vice versa.") Therefore, this action did not "commence" until the court granted plaintiff authority to proceed in forma pauperis.
Accordingly, the court hereby recommends plaintiff's request to proceed in forma pauperis be denied and plaintiff be required to pay the filing fee.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1), these findings and recommendations are submitted to the United States District Judge assigned to this case. Written objections may be filed within 20 days of service of these findings and recommendations. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge may accept, reject, or modify these findings and recommendations in whole or in part.
So ordered.