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Leon E. Morris v. Kevin Daly

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


January 29, 2013

LEON E. MORRIS, PLAINTIFF,
v.
KEVIN DALY, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On November 20, 2012, plaintiff filed a motion to proceed in forma pauperis.

Title 28 U.S.C. § 1915(g) provides:

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 three or more 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 2, 2008, in a case brought by plaintiff in the United States District Court for the Northern District of California, the court determined that plaintiff had "struck out" under § 1915(g) and dismissed the case. See Morris v. Woodford, No. C. 07-4198, 2008 WL 906560 (N.D. Cal. Apr. 2, 2008). 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 plaintiff brought this action in 2012. In his complaint, plaintiff asserts that the defendants have interfered with his ability to file grievances against other "cohorts." Plaintiff does not suggest that he is under imminent danger of serious physical injury.

In light of the foregoing, plaintiff's motion to proceed in forma pauperis will be denied and he will be ordered to pay the $350 filing fee for this action within twenty-one days. Plaintiff's failure to pay the filing fee within twenty-one days will result in a recommendation that this action be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to proceed in forma paupers (Dkt. No. 2.) is DENIED; and

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

20130129

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