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Blackman v. Scotland

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 6, 2008

TONY BLACKMAN, PLAINTIFF,
v.
JUDGE ARTHUR G. SCOTLAND, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER GRANTING MOTION FOR RECONSIDERATION AND DENYING REQUEST FOR RELIEF FROM ORDER FILED JUNE 10, 2008 (Doc. 4)

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS IN THIS ACTION AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS

Plaintiff Tony Blackman ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On June 10, 2008, the Court issued an order denying Plaintiff's motion for leave to proceed in forma pauperis and requiring Plaintiff to pay the $350.00 filing in full within thirty days. On July 10, 2008, Plaintiff filed an objection, which the Court construes as a motion for reconsideration of the Court's order.

Local Rule 72-303 provides for reconsideration of a Magistrate Judge's order by a District Judge. Plaintiff is entitled to modification of the order if it is clearly erroneous or contrary to law. Fed. R. Civ. P. 72; Local Rule 72-303. Plaintiff's motion for reconsideration is granted.

Plaintiff filed this action on June 2, 2008. Pursuant to 28 U.S.C. § 1915, "[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." Because Plaintiff has previously brought three or more actions which have been dismissed for failure to state a claim, he is subject to section 1915(g) and may not proceed in forma pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.*fn1

The Court has reviewed Plaintiff's complaint and the imminent danger exception does not apply to this action. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Further, Plaintiff's motion for reconsideration sets forth no grounds which would entitle him to relief from the application of section 1915(g). The order filed on June 10, 2008, was not clearly erroneous or contrary to law, and the undersigned finds that Plaintiff is ineligible to proceed in forma pauperis in this action. Plaintiff must submit the appropriate filing fee in order to proceed. The Court will provide Plaintiff with thirty days within which to pay the filing fee. Dismissal will occur if Plaintiff fails to comply with the terms of this order.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion for reconsideration, filed July 10, 2008, is GRANTED;

2. Plaintiff's request for relief from the Court's order of June 10, 2008, is DENIED;

3. Plaintiff is ineligible to proceed in forma pauperis in this action;

4. Plaintiff shall pay the $350.00 filing fee in full within thirty (30) days from the date of service of this order; and

5. The failure to pay the filing fee in full within thirty days will result in dismissal of this action, without prejudice.

IT IS SO ORDERED.


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