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Funtanilla v. Tristan

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


June 16, 2010

GREGORIO C. FUNTANILLA, JR., PLAINTIFF,
v.
DAVID TRISTAN, ET AL., DEFENDANTS.

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

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(G), AND REQUIRING PLAINTIFF TO SUBMIT $350.00 FILING FEE WITHIN THIRTY DAYS

(Doc. 2)

Plaintiff Gregorio C. Funtanilla, Jr., a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 9, 2010. Plaintiff seeks leave to proceed in forma pauperis.

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 March 14, 2001, 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.*fn2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff is not under imminent danger of serious physical injury, he is ineligible to proceed in forma pauperis in this action, and is precluded from proceeding on his complaint absent the submission of the filing fee in full.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion for leave to proceed in forma pauperis in this action is DENIED pursuant to 28 U.S.C. § 1915(g); and

2. Plaintiff shall submit the $350.00 filing fee in full within thirty (30) 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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