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Blackwell v. Taxdahl

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 11, 2009

RODNEY BLACKWELL, PLAINTIFF,
v.
D. TAXDAHL, ET AL., DEFENDANTS.

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

ORDER VACATING ORDER GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS IN THIS ACTION AND DIRECTING COLLECTION OF FILING FEE FROM HIS TRUST ACCOUNT

(Doc. 9)

ORDER REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED

Plaintiff Rodney Blackwell, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 10, 2009. Plaintiff was granted leave to proceed in forma pauperis on May 6, 2009.

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 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." Prior to the date he filed this action, Plaintiff sustained at least three strikes under section 1915(g), and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.*fn1 Plaintiff's claims in this action arise from the loss of his personal and legal property, and the handling of his inmate appeals. Therefore, this action does not qualify for the imminent danger exception, and Plaintiff must submit the appropriate filing fee in order to proceed with this action. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Based on the foregoing, it is HEREBY ORDERED that:

1. The order granting Plaintiff leave to proceed in forma pauperis in this action and directing collection of the filing fee from his trust account is VACATED;

2. Plaintiff shall pay the $350.00 filing fee in full within thirty (30) days from the date of service of this order or this action will be dismissed, without prejudice; and

3. A copy of this order shall be served on (1) the Director of the California Department of Corrections and Rehabilitation via the Court's electronic case filing system (CM/ECF), and (2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division.

IT IS SO ORDERED.


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