McClellan v. Youngblood et al

Filing 11

ORDER DISMISSING 1 Action Without Prejudice for Failure to Pay Filing Fee; ORDER for Clerk to CLOSE CASE signed by District Judge Lawrence J. O'Neill on 4/12/2010. CASE CLOSED. (Sant Agata, S)

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1 The three cases which counted as strikes pursuant to § 1915(g) were: McClellan v. Mountain, 1:08-cv0 0 2 5 6 -L J O -G S A PC (E.D. Cal.) (dismissed for failure to state a claim on 03/05/2009); McClellan v. Fink, 1:08-cv0 1 3 2 6 -Y N P PC (E.D. Cal.) (dismissed for failure to state a claim on 04/01/2009); and McClellan v. Haviland, 1:07c v -0 1 6 0 7 -O W W -S M S PC (E.D. Cal.) (dismissed for failure to state a claim on 10/19/2009).

UNITED STATES DISTRICT COURT

GREGORY MCCLELLAN, Plaintiff, v. YOUNGBLOOD, et al.,

CASE NO. 1:10-cv-00105-LJO-DLB PC ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE ORDER FOR CLERK TO CLOSE CASE

Defendants. /

Order Plaintiff Gregory McClellan ("Plaintiff") is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff had initially been granted in forma pauperis status on January 21, 2010. On February 18, 2010, the Court revoked Plaintiff's in forma pauperis status after court records revealed that Plaintiff had accumulated three strikes pursuant to 28 U.S.C. § 1915(g).1 The Court ordered Plaintiff to pay the filing fee in full within 30 days or the action would be dismissed without prejudice. Proceeding in forma pauperis is governed by 28 U.S.C. § 1915. 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,

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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 accrued three strikes pursuant to section 1915(g). Thus, Plaintiff may not proceed in forma pauperis unless he is in imminent danger of physical injury. Plaintiff provides no evidence that supports such a finding. There is no mention anywhere in Plaintiff's complaint that he is under imminent danger of physical injury. On February 18, 2010, the Court ordered Plaintiff to submit the $350.00 filing fee in full within thirty days. Plaintiff was warned that the failure to obey the court's order would result in dismissal of this action. More than thirty days have passed, and Plaintiff has not paid the filing fee. Accordingly, it is HEREBY ORDERED that this action is DISMISSED without prejudice based on Plaintiff's failure to pay the $350.00 filing fee. The Clerk is directed to close this case in its entirety. IT IS SO ORDERED. Dated: b9ed48 April 12, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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