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Tahee Abdul Rasheed Aka James E. Smith v. A. Lopez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 21, 2011

TAHEE ABDUL RASHEED AKA JAMES E. SMITH, PLAINTIFF,
v.
A. LOPEZ, ET AL.,
DEFENDANTS.

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

ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS IN THIS ACTION AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $350.00 FILING FEE IN FULL ORDER FOR CLERK TO CLOSE CASE

Plaintiff Tahee Abdul Rasheed aka James E. Smith, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 20, 2011. *fn1 (Doc. 1.) Plaintiff has not paid the $350.00 filing fee for this action or submitted an application 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. *fn2

The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. *fn3 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 is ineligible to proceed in forma pauperis in this action;

2. This action is DISMISSED, without prejudice to refiling with the submission of the $350.00 filing fee in full; and

5. The Clerk is directed to CLOSE this case.

IT IS SO ORDERED.

b9ed48


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