McClellan v. Heard et al

Filing 7

ORDER DENYING 2 Motion to Proceed IFP; Plaintiff is ineligible to proceed in forma pauperis; Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days or this action will be dismissed without prejudice, signed by Judge Oliver W. Wanger on 8/26/2010. (Filing Fee Deadline: 9/30/2010.) (Marrujo, C)

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(PC) McClellan v. Heard et al Doc. 7 1 2 3 4 5 6 7 8 9 Plaintiff, 10 vs. 11 PAT HEARD, et al., 12 13 14 / 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The court takes judicial notice of 1:09-cv-00256-LJO-GSA-PC McClellan v. Mountain. (E.D. Cal.) ( d is m is s e d for failure to state a claim on 03/05/2009), 1:08-cv-01326-YNP-PC McClellan v. Fink (E.D. Cal.) ( d is m is s e d for failure to state a claim on 04/01/2009), and 1:07-cv-01607-OW W -S M S -P C McClellan v. Haviland ( E .D . Cal.) (dismissed for failure to state a claim on 10/19/2009). UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA GREGORY McCLELLAN, 1:10-cv-01470-OWW-GSA-PC ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2.) ORDER FINDING PLAINTIFF INELIGIBLE TO PROCEED IN FORMA PAUPERIS IN THIS ACTION, AND REQUIRING PLAINTIFF TO PAY $350.00 FILING FEE IN FULL WITHIN THIRTY DAYS OR THIS ACTION WILL BE DISMISSED Defendants. Plaintiff, Gregory McClellan ("Plaintiff"), is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. 1983. Plaintiff filed this action on August 16, 2010, together with a motion to proceed in forma pauperis. (Docs. 1, 2.) Section 1915 of Title 28 of the United States Code 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 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 claims he was under "imminent danger" at the time the complaint was filed on August 16, 2010, because he was incarcerated at Kern County Jail with inmates who are HIVpositive and carry other communicable diseases. However, Plaintiff's "imminent danger" is entirely unrelated to the allegations in the complaint. In the complaint, Plaintiff names five parole agents as defendants, alleging they used unconstitutional parole procedures and improperly imposed residency restrictions upon him while he was on parole in 2007, 2008, and 2009. Because the "imminent danger" of communicable diseases while in jail does not apply to any part of Plaintiff's allegations against the parole agents, it does not make practical sense, under 1915(g), to allow Plaintiff to proceed in forma pauperis with this lawsuit. See Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007). Therefore, Plaintiff's motion to proceed in forma pauperis shall be denied, and Plaintiff 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. 4. Plaintiff's motion to proceed in forma pauperis, filed August 16, 2010, is DENIED; Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days; 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: August 26, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 2

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