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Jones v. Briggs

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 7, 2008

MONROE JONES, PLAINTIFF,
v.
M. BRIGGS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY $250.00 FILING FEE WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED ORDER VACATING ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. 16.) ORDER VACATING ORDER DIRECTING CDC TO MAKE PAYMENT OF FILING FEE (Doc. 17.)

Plaintiff Monroe Jones ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, filed on July 28, 2005 at the United States District Court for the Northern District of California. On September 12, 2005, the case was transferred to the Eastern District of California and received at this Court on October 7, 2005. (Doc. 1.) On April 18, 2007, plaintiff filed an application to proceed in forma pauperis and a copy of his prison trust account statement pursuant to 28 U.S.C. § 1915. (Doc. 15.) On May 21, 2007, the court granted plaintiff's application to proceed in forma pauperis and issued an order to the California Department of Corrections ("CDC") to deduct funds from plaintiff's prison trust account and forward payment of the filing fee to the court.*fn1 (Docs. 16, 17.) However, the court now finds that plaintiff is precluded from proceeding in forma pauperis in this action. See 28 U.S.C. §1915(g).

28 U.S.C. § 1915(g) provides that "[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." To date, plaintiff has filed at least three actions which were dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.*fn2 Thus, plaintiff is subject to section 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury.

The court has reviewed plaintiff's complaint and finds that plaintiff has alleged no facts that support a finding he is, at this time, under imminent danger of serious physical injury. Accordingly, plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action. It follows that the court must vacate its order granting leave for plaintiff to proceed in forma pauperis and its order directing the CDC to make payment of the filing fee.

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), plaintiff is ineligible to proceed in forma pauperis in this action;

2. Plaintiff shall pay the $250.00 filing fee in full within thirty (30) days or this action will be dismissed, without prejudice;*fn3

3. The court's order of May 21, 2007, granting leave for plaintiff to proceed in forma pauperis, is VACATED;

4. The court's order of May 21, 2007, directing the CDC to make payment of the filing fee, is VACATED; and

5. The Clerk of the Court is DIRECTED to serve a copy of this order on:

(1) the Director of the CDC at 1515 S Street, Sacramento, California 95814; and

(2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division.

IT IS SO ORDERED.


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