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Rasheed v. Harrington

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 11, 2009

TAHEE ABD' RASHEED A.K.A. JAMES E. SMITH, PLAINTIFF,
v.
WARDEN HARRINGTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED

(Doc. 1)

Plaintiff Tahee Abd' Rasheed, CDC# J-74120, a.k.a. James E. Smith, CDC# J-74120, is a state prisoner proceeding pro se in this civil action filed on August 21, 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.*fn1 Thus, plaintiff is subject to section 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury.

Plaintiff's claims arise from the non-receipt of packages, books and religious oils he ordered, in violation of his Fourteenth Amendment rights. Plaintiff's complaint also contains a conclusory allegation that defendants are conspiring to kidnap him. Plaintiff is not under imminent danger of serious physical injury, and he may not proceed in forma pauperis in this action. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 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. Pursuant to 28 U.S.C. § 1915(g), plaintiff is ineligible to proceed in forma pauperis in this action; 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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