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Davis v. City of Fresno

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 28, 2010

BRYAN DAVIS, PLAINTIFF,
v.
CITY OF FRESNO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER REVOKING PLAINTIFF'S IFP STATUS AND ORDERING PLAINTIFF TO PAY FILING FEE IN FULL BY AUGUST 31, 2010 AND ORDER VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE FROM PLAINTIFF'S TRUST ACCOUNT (ECF No. 5)

Plaintiff Bryan Davis ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed in forma pauperis on June 12, 2009. (ECF No. 5.) Plaintiff has consented to having a magistrate judge preside over this action. (ECF No. 8.)

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 13, 2009, 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. See Davis v. Jordan, 1:07-cv-302-LJO-DLB (PC) (E.D. Cal., dismissed March 13, 2009 for failure to state a claim upon which relief could be granted); Davis v. City of San Diego, 08-cv-1456-H (LSP) (S.D. Cal., dismissed September 10, 2008 for failure to state a claim upon which relief could be granted); Davis v. Garcia, 07-140-BEN (POR) (S.D. Cal., dismissed August 10, 2007 as frivolous).

On June 8, 2010, the Court ordered Plaintiff to show cause within thirty days as to why his in forma pauperis status should not be revoked pursuant to 28 U.S.C. § 1915(g). The Court has yet to receive a response from Plaintiff.

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). 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 $350.00 filing fee in full.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's in forma pauperis status is REVOKED pursuant to 28 U.S.C. § 1915(g);

2. The Court's Order directing the Director of the California Department of Corrections and Rehabilitation or his designee to deduct the $350.00 filing fee from Plaintiff's trust account whenever the balance exceeds $10.00 [ECF No. 5] is VACATED;

3. Plaintiff shall pay the $350.00 filing fee in full by August 31, 2010 or this action will be dismissed; and

4. The Clerk of the Court shall serve a copy of this order on (1) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division and (2) the Director of the California Department of Corrections and Rehabilitation via the Court's electronic case filing system (CM/ECF).

IT IS SO ORDERED.

20100728

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