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Smith v. Harrington

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 14, 2009

JAMES SMITH, PLAINTIFF,
v.
HARRINGTON ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN TWENTY DAYS

Plaintiff James Smith ("plaintiff") is a state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff filed this complaint on January 9, 2009. (Doc. 1).

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 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 had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.*fn2 Thus, plaintiff is subject to 28 U.S.C. § 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 that he is, at this time, under imminent danger of serious physical injury. Accordingly, plaintiff must submit the appropriate filing fee in order to proceed with this action.

Based on the foregoing, the court HEREBY ORDERS as follows:

1. Plaintiff is ordered to submit the $350.00 filing fee in full within twenty (20) days; and,

2. If plaintiff fails to pay the $350.00 filing fee in full within twenty (20) days, this court will recommend that the action be dismissed.

IT IS SO ORDERED.


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