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Richard Jose Dupree, Jr v. Dale A. Drozd

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


September 15, 2011

RICHARD JOSE DUPREE, JR., PLAINTIFF,
v.
DALE A. DROZD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with an application to proceed in forma pauperis pursuant to 28 U.S.C. §1915.

Review of court records reveals that on at least three occasions prior to the filing of this action lawsuits filed by plaintiff in this district were dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted.*fn1 See Dupree v. United States Copyright Office, Civ. S-11-1700 WBS KJN P (E.D. Cal.), Order filed July 28, 2011 (designating action as plaintiff's "third strike" under 28 U.S.C. § 1915(g)).

A prisoner may not bring a civil action or appeal a civil judgment under the in forma pauperis statute 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). In the present case, plaintiff has not alleged facts that suggest he is under imminent danger of serious physical injury. Thus, plaintiff must pay the filing fee in order to proceed with this case.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's September 8, 2011 application to proceed in forma pauperis is denied;

2. Plaintiff shall submit, within twenty days from the date of this order, the $350.00 filing fee for this action; and

3. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.


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