IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 10, 2012
LEON E. MORRIS, PLAINTIFF,
C.M. GREEN, DEFENDANT.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
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.