UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 22, 2010
DANIEL HARPER, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, DEFENDANT.
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $350.00 FILING FEE IN FULL (Docs. 1 and 2)
Plaintiff Daniel Harper, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 12, 2010. Plaintiff seeks leave to proceed in forma pauperis pursuant to 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 is subject to section 1915(g) 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. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff alleges no facts supporting a finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's motion for leave to proceed in forma pauperis in this action is denied; and
2. This action is dismissed, without prejudice, for refiling with the submission of the $350.00 filing fee in full.
IT IS SO ORDERED.