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Leon E. Morris v. Kevin Daly

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


May 16, 2013

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

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On January 30, 2013, the Magistrate Judge determined that plaintiff had "struck out" under 28 U.S.C. § 1915(g) and denied his motion to proceed in forma pauperis. (ECF No. 6.) The Magistrate Judge's conclusion was largely based on the fact that the United States District Court for the Northern District of California had reached this conclusion in one of plaintiff's earlier cases. See Morris v. Woodford, No. 3:07-cv-4198, 2008 WL 906560, 2008 U.S. Dist. LEXIS 119920 (N.D. Cal. Apr. 2, 2008). The Magistrate Judge also noted that plaintiff's complaint, which alleges that defendants have interfered with his ability to file grievances against their "cohorts," does not suggest that the plaintiff is under imminent danger of serious physical injury.

Thereafter, on March 11, 2013, plaintiff filed a request for extension of time, accompanied by a document styled, "Motion Showing Plaintiff Does Not Have Three Strikes." (ECF No. 8.) The court construes plaintiff's filing as a request for extension of time for the court to consider plaintiff's late request for reconsideration of the January 30, 2013 order. Good cause appearing, the court grants plaintiff's request for extension of time. Pursuant to E.D. Local Rule 303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law.*fn1

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's March 11, 2013 motion for extension of time (ECF No. 7) is granted;

2. Upon reconsideration, the order of the magistrate judge filed January 30, 3013 (ECF No. 6) is affirmed; and

3. Plaintiff is granted twenty-one (21) days from the date of this order in which to pay the $350.00 filing fee. Failure to timely pay the filing fee will result in the dismissal of this action.


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