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Tony Edward Powell v. Madden

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 21, 2012

TONY EDWARD POWELL,
PLAINTIFF,
v.
MADDEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO PAY THE FILING FEE WITHIN THIRTY DAYS

Plaintiff Tony Edward Powell ("Plaintiff") is a federal prisoner proceeding pro se in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff has failed to file an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 or submitted the filing fee.

Section 1915(g) 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." Plaintiff is subject to section 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. *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 alleges no facts supporting a finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action, therefore Plaintiff must pay the filing fee for this action to proceed.

Accordingly, it is HEREBY ORDERED that, within thirty days from the date of service of this order, Plaintiff shall submit the $350.00 filing fee in full or this action will be dismissed, without prejudice.

IT IS SO ORDERED.


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