UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 23, 2009
TAHEE ABD' RASHEED AKA PC JAMES E. SMITH, PLAINTIFF,
WARDEN HARRINGTON, ET AL., DEFENDANTS
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED
Plaintiff Tahee Abd' Rasheed, CDC# J-74120, aka James E. Smith, CDC# J-74120, ("plaintiff") is a state prisoner proceeding pro se in this civil action filed on February 20, 2009.
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." 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.*fn1 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.
Plaintiff's claims arise from the non-receipt of books and religious oil he ordered, in violation of his First Amendment rights. Plaintiff is not under imminent danger of serious physical injury, and he may not proceed in forma pauperis in this action. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff has thirty days to pay the $350.00 filing fee in full or this action will be dismissed.
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; and
2. Plaintiff shall pay the $350.00 filing fee in full within thirty (30) days or this action will be dismissed, without prejudice.
IT IS SO ORDERED.