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Tony Edward Powell v. Madden

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 24, 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 DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF No. 4)

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. This action was filed on September 17, 2012, and on September 21, 2012, an order issued finding that Plaintiff was subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis in this action. (ECF No. 3.) On October 5, 2012, Plaintiff filed a motion for reconsideration. (ECF No. 4.)

In his motion for reconsideration, Plaintiff acknowledges that he is subject to section 1915(g), but requests that he be permitted to proceed in forma pauperis because he has previously been permitted to proceed in forma pauperis and successfully met the conditions of 28 U.S.C. § 1915(b)(1)(2). Additionally, Plaintiff claims that he does not know the extent of his back injury and believes his health is deteriorating and he pulled his own tooth on September 27, 2012, because he was in pain and no treatment was provided.

Whether or not Plaintiff has previously complied with the provisions of section 1915(b)(1)(2) is irrelevant to the issue that Plaintiff is precluded from proceeding in pauperis because he is subject to section 1915(g). Section 1915(g) was enacted to address the extraordinary costs defending against frivolous lawsuits filed by prisoners. Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999). Since Plaintiff is subject to the provisions of 1915(g), he may only proceed in forma pauperis if, at the time he filed his complaint, he was in imminent danger of serious injury. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Neither the allegations in the complaint nor in the motion for reconsideration demonstrate that Plaintiff was in imminent danger of serious injury at the time the complaint was filed. Accordingly, Plaintiff is not entitled to proceed in forma pauper, and the motion for reconsideration, filed October 10, 2012, is HEREBY DENIED.

IT IS SO ORDERED.

20121024

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