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Tholmer v. Schulteis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 28, 2009

LIONELL THOLMER, PLAINTIFF,
v.
L. L. SCHULTEIS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WITHIN THIRTY DAYS WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE REVOKED

Plaintiff Lionell Tholmer, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 23, 2008. On January 21, 2009, Plaintiff was granted leave to proceed in forma pauperis.

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 actions dismissed for failure to state a claim upon which relief may be granted, and became subject to section 1915(g) on February 26, 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 of excessive force at Pleasant Valley State Prison in 2007. 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 is HEREBY ORDERED to show cause within thirty (30) days from the date of service of this order why his in forma pauperis should not be revoked.

IT IS SO ORDERED.


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