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Soto v. Kolb

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


August 6, 2009

WILLIAM SOTO, PLAINTIFF,
v.
KOLB, ET AL., DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS

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 request for leave to proceed in forma pauperis (Doc. 2).

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

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.

A review of the court's records shows Plaintiff has had at least three cases which were dismissed for failure to state a claim. These cases include: Soto v. California Department of Corrections, No. CIV S-06-1476-LKK- DAD, Soto v. California Department of Corrections, No. CIV S-07-1908-FCD-EFB, and Soto v. Jordan, No. CIV S-08-2687-GGH.*fn1 Each of these cases were dismissed for Plaintiff's failure to state a claim, and thus each counts as a "strike" under § 1915(g).*fn2

Plaintiff's current compliant alleges the named defendants are refusing to send out his mail and threatening to interfere with his use of the law library. There is nothing in his complaint which would indicate he is in imminent danger of serious physical injury so as to qualify for the "imminent danger" exception. Therefore, the undersigned finds that the "imminent danger" exception to § 1915(g) does not apply in this case, Plaintiff is not entitled to leave to proceed in forma pauperis in this action and Plaintiff's application should be denied.

Plaintiff should be required to 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 the 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.

Based on the foregoing, the undersigned recommends that Plaintiff's application for leave to proceed in forma pauperis be denied and he be required to pay the full statutory filing fee before proceeding in this action.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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