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Meador v. Alvidrez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 17, 2009

WILLIAM LANGSTON MEADOR, PLAINTIFF,
v.
SGT. J. ALVIDREZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS, AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED (Doc. 2)

Plaintiff William Langston Meador, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 and a motion seeking leave to proceed in forma pauperis on June 16, 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, and became subject to section 1915(g) on August 5, 2008.*fn1 Therefore, Plaintiff is precluded from proceeding in forma pauperis in this action unless he was, at the time the complaint was filed, under imminent danger of serious physical injury. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Plaintiff's claims arise from an incident at Kern Valley State Prison on July 16, 2008, in which he was sprayed with pepper spray, and then not allowed to shower or change clothes, causing him to suffer great pain. Because the claims raised in this action do not meet the imminent danger exception, Plaintiff may not proceed in forma pauperis. Andrews, 493 F.3d at 1053. 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. Plaintiff's motion for leave to proceed in forma pauperis in this action is DENIED; 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.


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