IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 30, 2011
JOHN R. DEMOS, PLAINTIFF,
THE PACIFIC LEGAL FOUNDATION, DEFENDANT.
Plaintiff is a state prisoner without counsel seeking relief for alleged civil rights violations. See 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).
Plaintiff seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma pauperis. A prisoner may not proceed in forma pauperis, 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). It appears that on at least three prior
occasions, plaintiff brought actions
while incarcerated that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted.*fn1
See Demos v. Beach, Case No. 2:00-cv-00456-GEB-PAN, Dckt. No.
11 (ordering plaintiff to show cause why his in forma pauperis status
should not be revoked in light of letter from the Clerk of the Court
for the United States District Court, Western District of Texas,
indicating plaintiff had filed 26 lawsuits which were dismissed as
frivolous); Dckt. No. 12 (order revoking plaintiff's in forma pauperis
status pursuant to § 1915(g)).
Further, it does not appear that plaintiff was under imminent threat of serious physical injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). The complaint refers to plaintiff's criminal trial and alleges claims of breach of contract, racial discrimination, and negligence. See Dckt. No. 1. The nature of plaintiff's allegations does not demonstrate that he suffered from imminent danger of serious physical injury at the time he filed his complaint. Thus, the imminent danger exception does not apply.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's August 11, 2011 application to proceed in forma pauperis is denied;
2. Plaintiff shall pay the $350 filing fee within 30 days; and
3. Plaintiff's failure to comply with this order will result in dismissal of this action. See 28 U.S.C. § 1914(a).