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Hayes v. Stewart

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


February 4, 2010

HENRY C. HAYES, PLAINTIFF,
v.
RODERICK STEWART, ET AL., DEFENDANTS.

ORDER

Plaintiff is a prisoner without counsel seeking relief for civil rights violations. See 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

For the reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma pauperis. A prisoner may not proceed in forma pauperis, 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.

28 U.S.C. § 1915(g). This court's records demonstrate that on at least three prior occasions, plaintiff brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.*fn1 See Order filed November 3, 2005, in Hayes v. Hickman, Civ. S-05-0147 MCE GGH P (E.D. Cal.); Order filed September 15, 2008 in Hayes v. Felker, Civ. S-07-0721 FCD GGH P (E.D. Cal.); Order filed December 11, 2008 in Mitchell v. San Diego County Superior Court, Civ. S-08-2586 LRS (E.D. Cal.). Plaintiff has not alleged facts suggesting that he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). "[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of the "'imminent danger'" exception to § 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. Cal. 2007). Therefore, the court will deny plaintiff's request for leave to proceed in forma pauperis and direct plaintiff to pay the filing fee for this action.

Accordingly, it is hereby ORDERED that:

1. Plaintiff's August 10, 2009 application to proceed in forma pauperis is denied; and

2. Plaintiff shall pay the $350 filing fee within 30 days. See 28 U.S.C. § 1914(a). Failure to comply with this order will result in dismissal.


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