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McClellan v. Younbglood

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


February 18, 2010

GREGORY MCCLELLAN, PLAINTIFF,
v.
DANNY YOUNGBLOOD, ET AL., DEFENDANTS.

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

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS AND DIRECTING PLAINTIFF TO PAY THE $350.00 FILING FEE WITHIN THIRTY DAYS

Plaintiff Gregory McClellan is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently detained at Kern County Jail. On January 21, 2010, Plaintiff filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Court granted this motion on January 25, 2010. The Court now finds that Plaintiff was granted in forma pauperis status in error.

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." A review of the record of actions filed by plaintiff in the United States District Court for the Eastern District of California reveals that plaintiff filed three or more actions that were dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.*fn1 Thus, plaintiff is subject to 28 U.S.C. § 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 that he is, at this time, under imminent danger of serious physical injury. Thus, plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action. Because the court previously granted plaintiff leave to proceed in forma pauperis in this action, the court revokes plaintiff's in forma pauperis status and plaintiff is ordered to submit the filing fee in full within thirty days.

Accordingly, based on the foregoing, the court HEREBY ORDERS that:

1. Pursuant to 28 U.S.C. § 1915(g), plaintiff's in forma pauperis status in this action is revoked;

2. Plaintiff is directed to submit the $350.00 filing fee in full within thirty (30) days; and

3. If plaintiff fails to pay the $350.00 filing fee in full within thirty (30) days, this action will be dismissed, without prejudice.

IT IS SO ORDERED.


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