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Colbert v. Banks

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


July 6, 2009

REGINALD COLBERT, PLAINTIFF,
v.
M. BANKS, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for leave to proceed in forma pauperis (Doc. 2).

Section 1915(g) of Title 28 of the United States Code provides in pertinent part as follows:

In 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 . . . in a court of the United States that was dismissed on the grounds that it . . . fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

In the complaint, plaintiff lists several prior civil rights cases filed in this court. Three of them were dismissed for failure to state a claim and, thus, constitute "strikes" under § 1915(g). See 07-1456 (judgment entered on 7-23-2008), 04-5262 (judgment entered on 9-26-2005), and 04-6417 (judgment entered on 1-23-2006 and affirmed by Ninth Circuit on 9-10-2007). Plaintiff's complaint does not allege imminent danger of serious physical injury. Therefore, plaintiff is not entitled to leave to proceed in forma pauperis in this action.

Plaintiff must pay the full statutory filing fee of $350.00 before this action can proceed. In addition, should the court find that service of the complaint is appropriate, plaintiff will be required to effect personal service on defendants at his own expense. Plaintiff is advised that failure to pay the filing fees, or effect timely service if ordered to do so, may result in dismissal of the action for lack of prosecution and failure to comply with court rules and orders. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis (Doc. 2) is denied pursuant to 28 U.S.C. § 1915(g) because he has three or more prior "strikes"; and

2. Within 30 days of the date of this order, plaintiff shall pay to the court the entire statutory filing fee of $350.00.

20090706

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