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Jimmy O. Gonzales v. T. Francisco

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 18, 2013

JIMMY O. GONZALES,
PLAINTIFF,
v.
T. FRANCISCO, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTION FOR RELIEF FROM ORDER REVOKING IN FORMA PAUPERIS STATUS AND DIRECTING CLERK OF COURT TO SERVE ORDER ON APPELLATE COURT (Doc. 16)

Plaintiff Jimmy O. Gonzales, # D-68831, is a state prisoner proceeding pro se. Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 1, 2012, and on April 2, 2013, the Court issued an order revoking Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) and dismissing the action, without prejudice to refiling with the $350.00 filing fee. Plaintiff filed a notice of appeal on April 12, 2013, and on April 15, 2013, Plaintiff filed a motion seeking to set aside the order revoking his in forma pauperis status so that he may proceed in forma pauperis on appeal.

Treated either as a motion seeking leave to proceed in forma pauperis on appeal, Fed. R. App. P. 24(a), or as a motion for reconsideration of the order revoking in forma pauperis status, Fed. R. Civ. P. 60(b), Plaintiff's motion is denied for the reasons which follow.

Plaintiff has long been subject to section 1915(g), but his blatant misrepresentation to the Court regarding the number of actions he filed, made under penalty of perjury, delayed the Court's discovery of his three strikes status. (Docs. 1, 11.) Having found Plaintiff subject to section 1915(g), the Court evaluated his complaint and determined that he did not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). While the Court does not seek to minimize the alleged events from which Plaintiff's claims arise, those events nonetheless occurred in August of 2012, and there is no support for a finding that Plaintiff, at the time he filed suit, was under imminent danger of serious physical injury. Id.

Further, although Plaintiff asserts in his motion that he is presently in imminent danger of physical injury, his bald, unverified assertion not only lacks the requisite plausibility, id. at 1055-57, but it does not negate the fact that Plaintiff's complaint alleges claims arising from the past use of excessive force, events which cannot and do not satisfy the imminent danger exception to section 1915(g), id. at 1053.

Accordingly, Plaintiff's motion for relief from the order revoking in forma pauperis status so that he may proceed in forma pauperis on appeal, filed on April 15, 2013, is HEREBY DENIED, with prejudice, and the Clerk of the Court shall serve a copy of this order on the Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED.

20130418

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