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Christopher S. Rider v. A. Rangel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 19, 2011

CHRISTOPHER S. RIDER,
PLAINTIFF,
v.
A. RANGEL, ET AL.,
DEFENDANTS.

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

ORDER DENYING DEFENDANTS' MOTION FOR SANCTIONS, DENYING MOTION TO RECONSIDER, AND DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE

(ECF Nos.54, 56, 58, 59 & 60)

CLERK SHALL CLOSE THE CASE

Plaintiff Christopher S. Rider, a state prisoner proceeding pro se, filed this civil rights action on September 12, 2007. (ECF No. 1.) On March 7, 2011, the Court found that Plaintiff was not entitled to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) and ordered Plaintiff to pay the $350.00 filing fee in full by April 11, 2011. *fn1 (ECF No. 55.) Plaintiff was warned that failure to pay the filing fee would result in dismissal of this action. *fn2

Plaintiff has filed a Motion for Reconsideration *fn3 arguing that he is in imminent danger of serious physical injury and, therefore, is entitled to proceed in forma pauperis despite his litigation history. See 28 U.S.C. § 1915(g). Plaintiff contends that, because he is in prison for crimes that involve forced sexual acts, he is constantly harassed by both prison guards and other inmates and is constantly in danger of serious physical injury. (ECF No. 59.)

To satisfy the so-called "imminent danger" exception, the operative complaint must allege that the prisoner is in imminent danger of serious physical injury at the time the action was initiated. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Plaintiff's Complaint in this case alleges that his cell was wrongfully searched by prison officials and that religious materials and objects were seized and/or destroyed. There is no allegation that Plaintiff was in danger of serious physical injury, much less that such danger was imminent. Nothing in the Complaint suggests that Plaintiff was being subjected to assault and/or harassment due to the nature of the crime for which he is imprisoned. As such, Plaintiff's Complaint fails to satisfy the imminent danger exception and Plaintiff's Motion for Reconsideration is DENIED. *fn4

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.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Extension is DENIED as moot;

2. Defendants' Motion for Sanctions (ECF No. 54) is DENIED;

3. Plaintiff's Motion for Leave to file opposition to Defendants' Motion for Sanctions (ECF No. 60) is DENIED;

4. Plaintiff's Motion to Strike Defendants' Motion for Sanctions (ECF No. 58) is DENIED;

5. Plaintiff's Motion for Reconsideration is DENIED;

6. This action is dismissed without prejudice pursuant to Local Rule 11-110 for failure to pay the filing fee.

7. The Clerk shall close the case.

IT IS SO ORDERED.


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