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Alton E. Dean v. Wong

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


November 29, 2011

ALTON E. DEAN, PLAINTIFF,
v.
WONG, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 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 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

Plaintiff requests leave to proceed in forma pauperis. The request must be denied because 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 Dean v. Sullivan, No. CIV 2:98-0717-LKK-DAD (E.D. Cal.) (March 22, 1999 Orderdismissing action for failure to state a cognizable claim); Dean v. Blanas, No. CIV 2:02-1122-LKK-GGH (E.D. Cal) (March 6, 2003 Order adopting February 11, 2003 Findings and Recommendations to dismiss action for failure to state a claim); and Dean v. Andreasen, No. CIV 2:02-0881-DFL-GGH (E.D. Cal.) (January 8, 2004 Order dismissing action for failure to state a claim).

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). Rather, plaintiff claimed that defendant Carey was interfering with plaintiff's "wheelchair pushers" by repeatedly inspecting plaintiff's wheelchair cushion, and that the Aspirin or Tylenol with codeine that plaintiff was receiving twice a day, was not adequately relieving his pain. See Dckt. Nos. 1 (pages 1, 9, 14), 4 (§ IV), 7 (pages 1-2, 6-7).*fn2 Plaintiff's allegations do 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 June 23, 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).


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