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Larson v. Carrasco

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 18, 2009

HARVEY EUGENE LARSON, PLAINTIFF,
v.
CARRASCO, ET AL., DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF'S REQUEST FOR LEAVE TO PROCEED IN FORMA PAUPERIS OBJECTIONS DUE WITHIN 15 DAYS

I. Findings and Recommendations

Plaintiff Harvey Eugene Larson ("Plaintiff") is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original complaint in this action on July 14, 2008 and the Court granted Plaintiff leave to proceed in forma pauperis by order filed on August 25, 2008. Plaintiff filed an amended complaint on October 30, 2008.

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 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 injury." 28 U.S.C. § 1915(g). A review of the record of actions filed by Plaintiff in the United States District Court for the Eastern District of California reveals that Plaintiff filed three or more actions that were dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.*fn1 Thus, on October 15, 2007, the date of the third dismissal, Plaintiff became subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff is under imminent danger of serious physical injury. In the instant action, Plaintiff has not alleged any facts to suggest that he is under imminent danger of serious physical injury. Thus, Plaintiff is not eligible to proceed in forma pauperis, and should be required to submit the appropriate filing fee in full in order to proceed with this action. In a separate order issued concurrently with this order, the Court vacated the orders granting Plaintiff leave to proceed in forma pauperis and directing the collection of the filing fee from Plaintiff's trust account, and the Court directed the Clerk of the Court to return to Plaintiff the portion of the filing, if any, that has been collected to date.

Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff be denied leave to proceed in forma pauperis;

2. Plaintiff be ordered to submit the $350.00 filing fee in full within fifteen (15) days; and

3. If Plaintiff fails to pay the $350.00 filing fee in full within fifteen (15) days, this action be dismissed, without prejudice.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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