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West v. Yates

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


April 19, 2010

JOHN E. WEST, PLAINTIFF,
v.
JAMES A. YATES, WARDEN, DEFENDANT.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C.§ 636(b)(1). Plaintiff has submitted a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).

This action proceeds on the January 1, 2009 complaint, in which plaintiff makes vague factual allegations involving mail tampering and withholding.

The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury." 28 U.S.C. § 1915(g). This plaintiff has, on three prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Among the dismissals suffered by plaintiff that count as strikes under 1915(g) are: West v. Climites, No 1:02-cv-6437-REC WMW PC; West v. Yates, et al., No. 1:05-cv-1554 OWW SMS PC;and West v. Lamarque et al., No. 1:06-cv-0628-LJOWMW PC. Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges facts indicating imminent danger of serious injury. Plaintiff alleges no such facts in this case.

Accordingly, IT IS ORDERED that plaintiff show cause, within thirty days, why he should not be denied leave to proceed in forma pauperis and directed to pay the filing fee in full.

20100419

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