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David E. Givens v. L.D. Zamora

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


September 20, 2012

DAVID E. GIVENS, PLAINTIFF,
v.
L.D. ZAMORA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On May 30, 2012, this court granted plaintiff's application to proceed in forma pauperis. (Dkt. No. 6.) The court dismissed plaintiff's complaint with leave to file an amended complaint. (Id.) On June 18, 2012, plaintiff filed a First Amended Complaint, ninety-five pages in length including exhibits, pursuant to which plaintiff challenges the medical care he is receiving at Mule Creek State Prison. (Dkt. No. 11.)

It recently came to the attention of this court that plaintiff is subject to the "three strikes rule" set forth in 28 U.S.C. § 1915(g).*fn1 This rule precludes a prisoner, who has been found on three or more occasions to have brought an action that was dismissed as frivolous, malicious, or failing to state a claim, from proceeding in forma pauperis absent a showing that plaintiff is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Pursuant to this rule, plaintiff was found, in May 2000, barred from proceeding in forma pauperis in the federal courts. See Givens v. Small et al., Case No. 00-0634-L (POR) (Southern District of California) (Dkt. No. 3). That order sets forth the several cases previously filed by plaintiff that were dismissed for failure to state a claim. (Id. at 4.) As a result, plaintiff is listed as three-strikes barred in the National Pro Se Three-Strikes Database.*fn2

For these reasons, the court must re-evaluate its order granting plaintiff in forma pauperis status in this case, before undertaking a review of plaintiff's First Amended Complaint. Therefore, plaintiff will be accorded the opportunity to show, if he can, that he should retain in forma pauperis status in this action because he "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). If plaintiff is unable to make this showing, he will be required to pay the filing fee in order to proceed in this action.

Accordingly, IT IS HEREBY ORDERED that, within fourteen (14) days after service of this order, plaintiff shall file and serve a declaration that: (1) demonstrates that plaintiff should retain in forma pauperis status in this action because he "is under imminent danger of serious physical injury," 28 U.S.C. § 1915(g), or (2) concedes that plaintiff is unable to make the required showing, and therefore that plaintiff: (a) chooses to pay the full filing fee ($350.00) in order to proceed in this action, or (b) chooses to have this action dismissed without prejudice.


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