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Harper v. California Dep't of Corrections

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 3, 2010

DANIEL HARPER, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, DEFENDANT.

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

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS AND VACATING ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. 10) ORDER VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE FROM PLAINTIFF'S TRUST ACCOUNT (Doc. 10) ORDER DENYING AS MOOT REQUEST FOR EXTENSION OF TIME (Doc. 8) ORDER DISMISSING THIS ACTION AS OPENED IN ERROR, AND DIRECTING CLERK'S OFFICE TO CLOSE CASE (Doc. 1)

Plaintiff Daniel Harper ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, originally filed this action in the Sacramento District Court on August 16, 2010. On August 30, 2010, the action was transferred to this Court as a new civil rights action because Plaintiff's complaint addresses Pleasant Valley State Prison's culpability in not returning his property while he was a prisoner there in Coalinga California, which is located in this jurisdiction. On September 24, 2010, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On September 27, 2010, the Court granted Plaintiff's application to proceed in forma pauperis. However, the Court now finds that Plaintiff is precluded from proceeding in forma pauperis in this action. See 28 U.S.C. §1915(g).

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. 28 U.S.C. § 1915(g). A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff filed three or more actions that were dismissed 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 under imminent danger of serious physical injury at the time the complaint is filed.

This Court has reviewed Plaintiff's complaint and finds that Plaintiff has not alleged any facts to support a finding that he is, under imminent danger of serious physical injury. Accordingly, Plaintiff may not proceed in forma pauperis, and must submit the appropriate filing fee in order to proceed with this action. It follows that this Court must VACATE its September 27th order granting leave for Plaintiff to proceed in forma pauperis and its order directing the CDCR to make payment of the filing fee.

For reasons discussed below, Plaintiff's motion for an extension of time filed on September 20, 2010, is DENIED as moot.

Additionally, this Court has reviewed the document purported to initiate this action, and finds that it was intended for filing in case number 2:09-cv-01969-GEB-KJN Harper v. California Department of Corrections, which is open and pending in the Sacramento District. The document was not intended by Plaintiff to be a complaint initiating a new action. Therefore, this action is DISMISSED on the ground that it was opened in error, and the Clerk's Office shall close the case.

If Plaintiff still wishes to seek the relief at issue in his motion, he must re-file it in the Sacramento District, and include case number 2:09-cv-01969-GEB-KJN in the caption to ensure the motion is filed in his pending case.

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 is VACATED;*fn2

3. 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);

4. Plaintiff's motion requesting an extension of time is DENIED; and

5. This action is DISMISSED and the Clerk's Office shall close the case.

IT IS SO ORDERED.


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