Davis v. Kelso et al

Filing 46

ORDER DENYING 45 Motion Proceed IFP on Appeal Pursuant Section 1915(g) signed by Magistrate Judge Gerald B. Cohn on 12/20/2011. (Served on USCA, Ninth Circuit eletronicly) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CHARLES T. DAVIS,

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CASE NO: 1:10-cv-01184-LJO-GBC (PC)

Plaintiff,

ORDER DENYING MOTION TO PROCEED
IFP ON APPEAL PURSUANT SECTION
1915(g)

v.
CLARK J. KELSO, et al.,

(Doc. 45)

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Defendants.
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Charles T. Davis ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis
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("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on July 1, 2010.
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Doc. 1. On October 19, 2011, the Court revoked Plaintiff’s IFP status and ordered Plaintiff to pay
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the filing fee within thirty days of service of the order or the action would be dismissed without
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prejudice. Doc. 42. On November 22, 2011, the Court dismissed the action for Plaintiff’s failure
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to comply with order to pay filing fee. Doc. 43.
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In its order revoking Plaintiff’s IFP status the Court found Plaintiff was not entitled to
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proceed in forma pauperis in this action because he had three or more actions that were dismissed
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as frivolous, malicious or for failing to state a claim upon which relief may be granted and Plaintiff
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became subject to section 1915(g) well before Plaintiff filed the underlying action on July 1, 2010.
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Because Plaintiff is no longer proceeding in forma pauperis in this action in the district court, he is
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not entitled to proceed in forma pauperis on appeal unless authorized by the Court. Fed. R. App. P.
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24(a)(3).
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The Court finds that 28 U.S.C. § 1915(g) precludes Plaintiff from proceeding IFP on appeal.
28 U.S.C. § 1915(g). Section 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding 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.

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28 U.S.C. § 1915(g) (emphasis added). As with the Court’s finding in its order revoking Plaintiff’s

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IFP status (Doc. 38; Doc. 42), Plaintiff fails to meet the imminent danger requirement. Therefore,

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Plaintiff's request to proceed IFP is prohibited by 28 U.S.C. § 1915(g).

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion seeking leave to proceed in forma pauperis on appeal, filed
December 5, 2011, is DENIED;

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2.

Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order shall serve as

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notice to Plaintiff and the United States Court of Appeals for the Ninth Circuit of the

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finding that Plaintiff is not entitled to proceed in forma pauperis; and

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3.

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The Clerk of the Court shall serve a copy of this order on plaintiff and the United
States Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.

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Dated:
0jh02o

December 20, 2011
UNITED STATES MAGISTRATE JUDGE

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