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McClellan v. Heard

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 26, 2010

GREGORY MCCLELLAN, PLAINTIFF,
v.
PAT HEARD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS IN THIS ACTION, AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED

ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2.)

Plaintiff, Gregory McClellan ("Plaintiff"), is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 16, 2010, together with a motion to proceed in forma pauperis. (Docs. 1, 2.)

Section 1915 of Title 28 of the United States Code 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 has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.*fn1

Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed, under "imminent danger" of serious physical injury.

Plaintiff claims he was under "imminent danger" at the time the complaint was filed on August 16, 2010, because he was incarcerated at Kern County Jail with inmates who are HIV-positive and carry other communicable diseases. However, Plaintiff's "imminent danger" is entirely unrelated to the allegations in the complaint. In the complaint, Plaintiff names five parole agents as defendants, alleging they used unconstitutional parole procedures and improperly imposed residency restrictions upon him while he was on parole in 2007, 2008, and 2009. Because the "imminent danger" of communicable diseases while in jail does not apply to any part of Plaintiff's allegations against the parole agents, it does not make practical sense, under § 1915(g), to allow Plaintiff to proceed in forma pauperis with this lawsuit. See Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007). Therefore, Plaintiff's motion to proceed in forma pauperis shall be denied, and Plaintiff must submit the appropriate filing fee in order to proceed with this action.

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is ineligible to proceed in forma pauperis in this action;

2. Plaintiff's motion to proceed in forma pauperis, filed August 16, 2010, is DENIED;

3. Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days; and

4. If Plaintiff fails to pay the $350.00 filing fee in full within thirty days, this action will be dismissed, without prejudice.

IT IS SO ORDERED.


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