Williams v. Tate et al

Filing 8

ORDER VACATING 5 ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS and VACATING 6 ORDER DIRECTING PAYMENT OF INMATE FILING FEE; ORDER DENYING 2 MOTION TO PROCEED IN FORMA PAUPERIS, and REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED signed by Judge Oliver W. Wanger on 07/06/07. Filing fee due by 8/15/2007. (Verduzco, M)

(DLB) (PC) Williams v. Tate et al

Doc. 8

Case 1:07-cv-00909-OWW-NEW

Document 8

Filed 07/09/2007

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1 2 3 4 5 6 7 8 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 15 HAROLD TATE, et al., 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Antonio Luis Williams ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 25, 2007, along with a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). On July 2, 2007, the court issued orders granting plaintiff leave to proceed in forma pauperis and directing the California Department of Corrections to facilitate payment of the filing fee from plaintiff's prison trust account. Further review by the court reveals that plaintiff is not entitled to proceed in forma pauperis. Therefore, the courts orders shall be vacated, and plaintiff's motion to proceed in forma pauperis shall be denied. 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

ANTONIO LUIS WILLIAMS,

1:07-cv-00909-OWW-NEW (DLB) PC ORDER VACATING ORDER GRANTING APPLICATION TO PROCEED IN FORMA P A U P E R I S AND ORDER DIRECTING PAYMENT OF INMATE FILING FEE (Docs. 5, 6) ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED (Doc. 2) /

v.

Defendants.

Case 1:07-cv-00909-OWW-NEW

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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." Plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted.1 Thus, plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff is, at the time the complaint is filed, under imminent danger of serious physical injury. Plaintiff has alleged imminent danger. A review of plaintiff's complaint reveals that the basis for his claims in this action is a conspiracy by defendants to interfere with plaintiff's medical care by deliberately failing to enforce the physician's surgical orders to repair plaintiff's dislocated shoulder. Plaintiff alleges that defendants transported him to Corcoran District Hospital for surgery, but the surgery was not performed as ordered, leaving plaintiff in the same condition as before, in pain, and unable to exercise. (Doc. 1, Comp., pgs. 4-7.) In the attached exhibits, plaintiff also offers evidence of the alleged inadequate medical care of his shoulder. (Id., pgs. 8-34.) However, plaintiff has alleged no facts that support a finding that he is, at this time, under imminent danger of serious physical injury. Therefore, plaintiff may not proceed in forma pauperis in this action, and must submit the appropriate filing fee in order to proceed with this action. Based on the foregoing, it is HEREBY ORDERED that: 1. Pursuant to 28 U.S.C. § 1915(g), plaintiff is ineligible to proceed in forma pauperis in this action; 2. 3. Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days; The Clerk of Court is directed to serve a copy of this order on the Director of the California Department of Corrections and Rehabilitation, 1515 S Street, Sacramento,

1 The Court takes judicial notice of 4:04-cv-00782-CW W illia m s v. McGrath, et al (N.D. Cal.) (dismissed fo r failure to state a claim on 06/25/2004), 4:04-cv-02543-CW W illia m s v. Hagar, et al. (N.D. Cal.) (dismissed for f a i l u r e to state a claim on 11/10/2004), and 1:06-cv-01097-OW W - D L B W i l li a m s v. W u n d e r l i c h , et al. (E.D. Cal.) ( d i sm is se d for failure to state a claim on 10/05/2006).

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Case 1:07-cv-00909-OWW-NEW

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California 95814; The Clerk of the Court is directed to serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Fresno Division; and If plaintiff fails to pay the $350.00 filing fee in full within thirty days, this action will be dismissed, without prejudice. IT IS SO ORDERED. Dated: July 6, 2007 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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