Funtanilla v. Tristan et al

Filing 4

ORDER Denying 2 Plaintiff's Motion for Leave to Proceed In Forma Pauperis pursuant to 28 USC 1915(G), and Requiring Plaintiff to Submit $350.00 Filing Fee within Thirty Days, signed by District Judge Lawrence J. O'Neill on 6/16/2010. Filing Fee Deadline: 7/19/2010. (Verduzco, M)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Plaintiff Gregorio C. Funtanilla, Jr., a state prisoner proceeding pro se, filed this civil rights 16 action pursuant to 42 U.S.C. § 1983 on June 9, 2010. Plaintiff seeks leave to proceed in forma 17 pauperis. 18 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n 19 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 20 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 21 of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 22 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 23 physical injury." Plaintiff became subject to section 1915(g) on March 14, 2001, and is precluded 24 from proceeding in forma pauperis unless he is, at the time the complaint is filed, under imminent 25 26 27 28
The Court takes judicial notice of case number 1:02-cv-06001-OW W - G S A PC Funtanilla v. Tristan, et al., ( E . D . C a l . ) (court record documents 144 & 153 - 3 strikes Findings and Recommendations dated July 5, 2005, & O r d e r adopting dated Sept. 28, 2005, finding plaintiff subject to section 1915(g)).
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UNITED STATES DISTRICT COURT

GREGORIO C. FUNTANILLA, JR., Plaintiff, v. DAVID TRISTAN, et al., Defendants.

CASE NO. 1:10-cv-01048-LJO-SMS PC ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(G), AND REQUIRING PLAINTIFF TO SUBMIT $350.00 FILING FEE WITHIN THIRTY DAYS (Doc. 2) /

danger of serious physical injury.1

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The Court has reviewed Plaintiff's complaint and finds that Plaintiff does not meet the imminent danger exception.2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff is not under imminent danger of serious physical injury, he is ineligible to proceed in forma pauperis in this action, and is precluded from proceeding on his complaint absent the submission of the filing fee in full. Based on the foregoing, it is HEREBY ORDERED that: 1. Plaintiff's motion for leave to proceed in forma pauperis in this action is DENIED pursuant to 28 U.S.C. § 1915(g); and 2. Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days from the date of service of this order or this action will be dismissed, without prejudice.

IT IS SO ORDERED. Dated: June 16, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

Plaintiff's claim in this action arises from the confiscation of his personal property at Kern Valley State P r is o n . The Court expresses no opinion on the merits of Plaintiff's claim.

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