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Ransom v. Secretary of Dep't of Corrections and Rehabilitation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 9, 2010

BRYAN E. RANSOM, PLAINTIFF,
v.
SECRETARY OF DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER FINDING FIRST AMENDED COMPLAINT FAILS TO MEET IMMINENT DANGER EXCEPTION AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE TO REFILING CONTEMPORANEOUS WITH $350.00 FILING FEE CLERK SHALL CLOSE THE CASE

Plaintiff Bryan E. Ransom ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On August 11, 2010, the Court found that Plaintiff was ineligible to proceed in forma pauperis based on his litigation history and the fact that his complaint did not allege that he was in imminent danger of serious physical harm. Plaintiff was directed to pay the $350.00 filing fee by September 15, 2010 or his case would be dismissed. (ECF No. 4.)

On September 3, 2010, Plaintiff filed a First Amended Complaint. (ECF No. 8.) Plaintiff's First Amended Complaint added a number of claims that were unrelated to the claim pursued in his initial complaint. The Court questions the propriety of such a broad amendment to Plaintiff's original claims, but has nonetheless reviewed the amended complaint to determine whether it meets the imminent danger exception to 28 U.S.C. § 1915(g). The Court finds that Plaintiff's First Amended Complaint does not allege that he was in imminent danger of serious physical injury at the time when he brought this case in August 2010. See Andrews v. Cervantes, 493 F.3d 1047, 1052-54 (9th Cir. 2007) (holding that relevant time frame for the imminent danger exception is when the action is brought by the plaintiff, not when an amended complaint is filed). Thus, Plaintiff does not qualify to proceed in forma pauperis in this action.

A civil action may not proceed absent the submission of either the filing fee or the grant of in forma pauperis status. 28 U.S.C. §§ 1914, 1915. Because Plaintiff is not entitled to proceed in forma pauperis and has not paid the filing fee, dismissal of this action is appropriate. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local Rule 11-110.

For the reasons stated above, the instant action is DISMISSED without prejudice to Plaintiff refiling the action contemporaneous with payment of the $350.00 filing fee. The Clerk shall close the case.

IT IS SO ORDERED.

20101109

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