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Johnson v. Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 21, 2010

GARRISON S. JOHNSON, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

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

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 2) FILING FEE DUE WITHIN TWENTY-ONE DAYS

Plaintiff Garrison S. Johnson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation, proceeding pro se. On October 14, 2010, Plaintiff filed a motion requesting to proceed in forma pauperis in this action.

Proceedings in forma pauperis are governed by 28 U.S.C. § 1915. 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 § 1915(g) on April 5, 2010, 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.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis, filed October 14, 2010, is DENIED. Plaintiff is required to pay the $350.00 filing fee in full within twenty-one (21) days from the date of service of this order. Failure to timely pay the filing fee will result in dismissal of this action without prejudice.

IT IS SO ORDERED.


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