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Dennis Gerald Claiborne v. U.S. Department of Health and

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 7, 2012

DENNIS GERALD CLAIBORNE,
PLAINTIFF,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REVOKING IN FORMA PAUPERIS STATUS AND DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE

Plaintiff Dennis Gerald Claiborne ("Plaintiff"), a California state prisoner proceeding pro se, filed this action on May 21, 2012. The action originally was designated as a petition for writ of habeas corpus, and Plaintiff was granted leave to proceed in forma pauperis. Based on the complaint, the court subsequently redesignated the matter as a regular civil action. It now appears that Plaintiff's leave to proceed in forma pauperis should be revoked.

Section 1915(g) of Title 28 of the United States Code provides that "[i]n no event shall a prisoner bring a civil action . . . under this section 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).

Plaintiff is subject to § 1915(g), and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury. 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 granted. The Court takes judicial notice of the following cases:

Claiborne v. Beebe, 1:06-cv-0681-AWI-DLB PC (§ 1983 action dismissed for failure to state a claim); Claiborne v. Stevens, C06-2012 CW (PR), 2007 WL 2814658 (N.D. Cal. Sept. 25, 2007) (§ 1983 action dismissed for failure to state a claim); Claiborne v. Randolf, C 02-3375 WHA (PR), 2003 WL 1936131 (N.D. Cal. Apr. 21, 2003) (§ 1983 action dismissed for failure to state a claim).*fn1

The Court has reviewed Plaintiff's complaint and finds that Plaintiff does not meet the imminent danger exception.*fn2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff is not under imminent danger of serious physical injury, he is ineligible to proceed in forma pauperis in this action, and is precluded from proceeding on his complaint absent the submission of the filing fee in full.

Based on the foregoing, it is HEREBY ORDERED that Plaintiff's in forma pauperis status is revoked and this action is dismissed, without prejudice to re-filing if accompanied by the $350.00 filing fee.

IT IS SO ORDERED.


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