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Law v. Whitson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 17, 2009

CARLOS GILBERT LAW, PLAINTIFF,
v.
SGT. WHITSON, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Samuel P. King Senior United States District Judge

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C § 1983 and has requested leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915.

On February 20, 2009, Plaintiff was asked to show cause why his IFP application should not be denied, because it appeared that he has had at least 3 prior prison-condition actions dismissed for failure to state a claim, including actions in the Northern District of California and in an Alabama federal court.

Plaintiff responded by, among other things, denying that he is the same person who had filed all the actions in federal court in Alabama. For purposes of this motion, the court accepts Plaintiff's denial. Therefore, the court need not address Plaintiff's other assertion that he is now under imminent danger of physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (holding that a prisoner's qualification for the imminent danger exception to the PLRA's three-strikes rule is determined at the time of filing suit, not at some earlier or later time).

Reviewing the IFP application, Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, Plaintiff's request to proceed in forma pauperis is GRANTED. Plaintiff is required to pay the statutory filling fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). When, as here, Plaintiff has insufficient funds available in his prison trust account, the court does not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated, however, to make monthly payments of twenty percent of the preceding month's income credited to Plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a government entity or officer or employee of a government entity.

28 U.S.C. § 1915A(a). The court has not yet screened the Complaint to determine whether it sufficiently states a claim and shall proceed in the normal course. After screening, if the court determines that Plaintiff's Complaint states a claim, the court will issue a written Order and will then instruct the Clerk of the Court to send Plaintiff the documents necessary to effect service.

CONCLUSION

1. Plaintiff's request for leave to proceed in forma pauperis is GRANTED.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The Warden at Salinas Valley State Prison, P.O. Box 1020, Soledad, CA 93960-0690, or the Warden's designee, shall collect from Plaintiff's prison account monthly payments in an amount equal to twenty percent of the preceding month's income credited to Plaintiff's prison account and shall forward those payments to the Clerk of Court each time the amount in the account exceeds $10.00 in accordance with 28 U.S.C. § 1915(b)(2) until a total of $350.00 has been collected and forwarded to the Clerk of Court.

THE PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

3. The Clerk of the Court is DIRECTED to serve a copy of this Order on Plaintiff and on The Warden at Salinas Valley State Prison, P.O. Box 1020, Soledad, CA 93960-0690.

4. The court has not yet screened the Complaint to determine whether it sufficiently states a claim and shall proceed in the normal course. After screening, if the court determines that Plaintiff's Complaint states a claim, the court will issue a written Order and will then instruct the Clerk of the Court to send Plaintiff the documents necessary to effect service.

IT IS SO ORDERED.

20090317

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