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Dynes v. Rodriguez

United States District Court, E.D. California

July 3, 2014

JOHN RAY DYNES, Plaintiff,
v.
DEPUTY RODRIGUEZ, et al., Defendants.

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) ORDER VACATING ORDER OF APRIL 3, 2014 (ECN No. 4.) ORDER VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE PAYMENTS FOR THIS ACTION ORDER DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400 FILING FEE IN FULL (ECF No. 1.)

GARY S. AUSTIN, Magistrate Judge

I. BACKGROUND

Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1] Plaintiff filed the Complaint commencing this action on March 27, 2014. On the same date, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On April 3, 2014, the Court granted Plaintiff leave to proceed in forma pauperis.

II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action... under this section 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."

A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, under imminent danger of serious physical injury.[2]

The Court has reviewed Plaintiff's Complaint and finds that Plaintiff does not meet the imminent danger exception. See Andrews v. Cervantes , 493 F.3d 1047, 1053 (9th Cir. 2007). The gravamen of Plaintiff's Complaint is that while he was housed at the Fresno County Jail, he was subjected to a single instance of excessive force and that jail officials failed to provide adequate medical care. Plaintiff failed to allege any facts indicating any future harm or imminent danger.

Plaintiff fails to allege facts sufficient to demonstrate that he was under actual threat of harm. Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Plaintiff's in forma pauperis status shall be revoked, and this action shall be dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's in forma pauperis status is REVOKED;
2. The court's order entered on April 3, 2014, which granted Plaintiff leave to proceed in forma pauperis, is VACATED;
3. This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and
4. The Clerk is directed to CLOSE this case.

IT IS SO ORDERED.


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