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Gonzales v. Vikjord

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 7, 2009

MICHAEL GONZALES, PLAINTIFF,
v.
VIKJORD, 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 ORDER VACATING ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS and DIRECTING CDC TO MAKE PAYMENT OF FILING FEE (Doc. 5)

Plaintiff Michael Gonzales ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, filed on December 3, 2008. On December 3, 2008, 2007, Plaintiff filed an application to proceed in forma pauperis and a copy of his prison trust account statement pursuant to 28 U.S.C. § 1915. On December 16, 2008, the Court granted Plaintiff's application to proceed in forma pauperis and issued an order to the California Department of Corrections ("CDC") to deduct funds from Plaintiff's prison trust account and forward payment of the filing fee to the Court. However, the Court now finds that Plaintiff is precluded from proceeding in forma pauperis in this action. See 28 U.S.C. §1915(g).

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." To date, Plaintiff has filed twenty-two actions in the United States District Court for the Eastern District of California, and 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.

The Court has reviewed Plaintiff's Complaint and finds that Plaintiff has alleged no facts that support a finding he is, at this time, under imminent danger of serious physical injury. Accordingly, Plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action. It follows that the Court must vacate its order granting leave for Plaintiff to proceed in forma pauperis and its order directing the CDC to make payment of the filing fee.

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;

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

3. The Court's order of December 16, 2008, granting leave for Plaintiff to proceed in forma pauperis, is VACATED;

4. The court's order of December 16, 2008, directing the CDC to make payment of the filing fee, is VACATED; and

5. The Clerk of the Court is DIRECTED to serve a copy of this order on:

(1) the Director of the CDC at 1515 S Street, Sacramento, California 95814; and

(2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division.

IT IS SO ORDERED.


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