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Magee v. Grannis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 24, 2010

RUCHELL CINQUE MAGEE, PLAINTIFF,
v.
N. GRANNIS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

(Docs. 2, 15, and 17)

ORDER REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE WITHIN TWENTY DAYS

Plaintiff Ruchell Cinque Magee, a state prisoner proceeding pro se, filed in this civil rights action pursuant to 42 U.S.C. § 1983 on May 29, 2009. Plaintiff filed motions seeking leave to proceed in forma pauperis on May 29, 2009, and October 13, 2009. On October 16, 2009, an order issued denying Plaintiff's motion for leave to proceed in form a pauperis and requiring Plaintiff to pay $350 filing fee within twenty days. On October 30, 2009, Plaintiff appealed that order. On March 12, 2010, Plaintiff's appeal was dismissed for failure to prosecute.

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." Plaintiff became subject to section 1915(g) on July 23, 2007, 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

The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). As stated in the October 16, 2009 order, because Plaintiff has alleged no facts that support a finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff shall pay the $350.00 filing fee in full within twenty (20) days from the date of service of this order or this action will be dismissed, without prejudice.

IT IS SO ORDERED.


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