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Hendon v. Baroya

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 2010

CARLOS D. HENDON, PLAINTIFF,
v.
BAROYA, ET AL., DEFENDANTS.

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

ORDER DENYING MOTIONS TO SHOW CAUSE (ECF Nos. 15 & 16)

Plaintiff Carlos D. Hendon ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On June 9, 2010, the Court ordered Plaintiff to show cause why his motion to proceed in forma pauperis should not be denied pursuant to 28 U.S.C. § 1915(g) based on his litigation history. (ECF No. 13.) Plaintiff failed to respond. On July 29, 2010, the Court denied Plaintiff's application to proceed in forma pauperis because Plaintiff's Complaint did not allege facts showing that he faced an ongoing risk of serious physical injury. (ECF No. 14.)

Before the Court are Plaintiff's Request to Show Cause [ECF No. 15] and Motion to Show Cause [ECF No. 16] asking for additional time to respond to the Court's June 9 Order. Plaintiff claims that he was temporarily transferred to another prison facility and therefore did not receive the Court's June 9, 2010 Order. He argues that he can show that he is in imminent danger of serious physical injury and, therefore, should be allowed to proceed in forma pauperis.

To meet the imminent danger exception to 28 U.S.C. § 1915(g), a party's complaint must contain facts showing that the prisoner is in imminent danger of serious physical harm that is ongoing. See Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007). As noted in the Court's July 29 Order, Plaintiff's current Complaint does not contain facts showing that he is subject to an ongoing harm. (ECF No. 14 at 2.) The Federal Rules of Civil Procedure allow Plaintiff to amend his complaint once as a matter of right and without leave of the Court. Fed. R. Civ. P. 15(a)(1). Thus, Plaintiff is free to file an amended complaint that sets forth facts showing that he meets the imminent danger exception.

Because Plaintiff must amend his complaint in order to meet the imminent danger exception and Plaintiff is free to do so at any time without leave of the Court, it would be futile to grant Plaintiff additional time to show cause regarding these issues. Accordingly, Plaintiff's Request to Show Cause [ECF No. 15] and Motion to Show Cause [ECF No. 16] are DENIED.

IT IS SO ORDERED.

20100823

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