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Leon E. Morris v. C.M. Green

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


December 10, 2012

LEON E. MORRIS, PLAINTIFF,
v.
C.M. GREEN, DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On October 30, 2012, the court granted plaintiff's motion to proceed in forma pauperis after the court determined that plaintiff had demonstrated that he is unable to afford the filing fee for this action. However, because it has already been determined that plaintiff has "struck out" under 28 U.S.C. § 1915(g), and because plaintiff fails to allege he is under imminent danger of serious physical harm, plaintiff's in forma pauperis status will be revoked.*fn1

Title 28 U.S.C. § 1915(g) reads as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] 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.

On April 3, 2008 in a case brought by plaintiff in the United States District Court for the Northern District of California, Morris v. Woodford, 3:07-cv-4198 MJJ, the judge determined that plaintiff had "struck out" under § 1915(g) and dismissed the case.*fn2 Plaintiff appealed the decision. On August 4, 2008, the Ninth Circuit denied plaintiff's request to proceed in forma pauperis on appeal without explanation and ordered plaintiff to pay the filing fee. Plaintiff's appeal was dismissed on September 4, 2008 for failure to pay the filing fee and the mandate with respect to that decision was issued that day as well. Accordingly, the decision that plaintiff had "struck out" under § 1915(g) was final well before this action was filed in 2012. In his complaint, plaintiff seeks damages against defendant for retaliating against plaintiff in several respects for filing prisoner grievances. Plaintiff does not seek injunctive relief nor point to anything suggesting he is under imminent danger of serious physical injury.

In light of the foregoing, plaintiff's in forma pauperis status will be revoked and plaintiff will be ordered to pay the $350 filing fee for this action within 21 days. Plaintiff's failure to file the filing fee within 21 days will result in a recommendation that this action be dismissed.

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

1. Plaintiff's in forma pauperis status is revoked; and

2. Plaintiff shall pay the $350 filing fee for this action within 21 days. Failure to pay the filing fee within 21 days will result in a recommendation that this action be dismissed without prejudice.


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