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Richard Jose Dupree v. Earvin (Magic) Johnson et al

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


July 9, 2012

RICHARD JOSE DUPREE, JR., PLAINTIFF,
v.
EARVIN (MAGIC) JOHNSON ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed an undated civil rights action pursuant to 42 U.S.C. § 1983, alleging violation of his First, Fifth and Fourteenth Amendment rights by plaintiff's wife and Earvin Johnson, the defendants.

Plaintiff has not, however, paid the required filing fee. See 28 U.S.C. §§ 1914(a). Plaintiff will be provided the opportunity to submit the appropriate filing fee.

The court notes that plaintiff has not filed an application to proceed in forma pauperis. It appears that plaintiff may not be eligible to proceed under 28 U.S.C. § 1915 in any event, since court records, of which this court takes judicial notice,*fn1 indicate that plaintiff has three strikes, as that phrase is defined in 28 U.S.C. § 1915(g), and has not alleged that he is eligible for any statutory exceptions. See Dupree v. United States Copyright Office, 2:11-cv-1700 WBS KJN P, Doc. No. 11, Order filed July 28, 2011 (designating action as plaintiff's "third strike" under 28 U.S.C. § 1915(g)). See also Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999) (plain language of § 1915(g) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three)).

Moreover, the current action is frivolous and fails to state a claim upon which relief can be granted, because neither defendant is alleged to be acting under color of state law. See, e.g., Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Price v. State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (private parties are generally not acting under state color of state law). Specifically, plaintiff alleges that his wife had an extramarital affair with defendant Johnson, that the two are members of a satellite organization and have constantly monitored plaintiff in his cell, and that they have stolen plaintiff's credit card protection trade secret. As damages, plaintiff seeks to be released from prison, and ten million dollars. Because plaintiff has not alleged that his wife or Johnson subjected plaintiff to a deprivation of his rights while acting "under color of any statute, ordinance, regulation, custom or usage, of any State of Territory....," relief under 42 U.S.C. § 1983 is not available to plaintiff against these defendants.

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

1. Plaintiff shall submit, within thirty days from the date of this order, the appropriate filing fee; or an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the appropriate filing fee; plaintiff's failure to comply with this order will result in the dismissal of this action; and

2. The Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma Pauperis By a Prisoner.


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