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Alton E. Dean v. Kathryn M. Gonzales

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 18, 2011

ALTON E. DEAN, PLAINTIFF,
v.
KATHRYN M. GONZALES, DEFENDANT.

ORDER

On June 2, 2010, plaintiff, a state prisoner proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983.

On July 8, 2010, plaintiff submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. §1915. Upon review of the court's records, the undersigned found that plaintiff was barred from proceeding in forma pauperis in light of at least three prior actions that had been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted.*fn1 See Order filed on March 6, 2003 in Dean v. Blanas, No. CIV 2:02-1122-LKK-GGH (E.D. Cal.); order filed March 22, 1999 in Dean v. Sullivan, No. CIV 2:98-0717-LKK-DAD (E.D. Cal.); and order filed January 8, 2004 in Dean v. Andreasen, MD.., No. CIV 2:02-0881-DFL-GGH. The undersigned also found that plaintiff had not alleged facts that suggested he was under imminent danger of serious physical injury. Thus, plaintiff was ordered to pay the filing fee in order to proceed with this case.

On August 10, 2010, plaintiff filed an addendum to his complaint alleging imminent danger. On October 18, 2010, the undersigned recommended dismissal for plaintiff's failure to pay the filing fee. On November 30, 2010, the Honorable Frank C. Damrell adopted the recommendations and dismissed this action without prejudice.

On April 20, 2011, the Ninth Circuit Court of Appeals reversed the dismissal and remanded the action to this court after finding that plaintiff satisfied the "imminent danger" requirement of 28 U.S.C. § 1915(g). On May 11, 2011, the appellate court issued its formal mandate. Accordingly, plaintiff's in forma pauperis application will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

The court has reviewed the complaint, but finds it illegible. Although it is evident that plaintiff is claiming defendants violated his Eighth Amendment rights, plaintiff attaches to his complaint poorly photocopied pages that appear to set forth the factual allegations of his claim. As such, the court cannot identify the names of any defendants other than Kathryn Gonzales and cannot determine the factual basis of plaintiff's claim against any defendant, including Gonzales.

Based thereon, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to reopen this case;

2. Plaintiff's July 8, 2010 motion to proceed in forma pauperis is granted;

3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

4. Plaintiff is directed to submit a legible photocopy of his complaint within twenty days of the date of this order.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ALTON E. DEAN, Plaintiff, v. KATHRYN M. GONZALES, et al., Defendants. No. 2:10-cv-1355 FCD JFM (PC)

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed copies of the Complaint

DATED:

Plaintiff


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