East v. Man, et al.

Filing 14

ORDER REVOKING Plaintiff's In Forma Pauperis Status Under § 1915(g); ORDER VACATING Order Granting Application to Proceed In Forma Pauperis 4 ; ORDER VACATING Order Directing CDCR to Collect Filing Fee Payments for This Action 4 ; ORDER D ISMISSING Action, Without Prejudice to Refiling With Submission of $350.00 Filing Fee in FULL; ORDER For Clerk to CLOSE Case and Serve Copy of This Order on CDCR and Court Financial Department, signed by Chief Judge Anthony W. Ishii on 12/23/11. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EBONE LEROY EAST,

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Plaintiff,

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1:10-cv-01807-AWI-GSA-PC
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS UNDER
§ 1915(g)

v.
CHULYAK, et al.,

ORDER VACATING ORDER GRANTING
APPLICATION TO PROCEED IN FORMA
PAUPERIS
(Doc. 4.)

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Defendants.
ORDER VACATING ORDER DIRECTING
CDCR TO COLLECT FILING FEE
PAYMENTS FOR THIS ACTION
(Doc. 4.)

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE TO REFILING WITH
SUBMISSION OF $350.00 FILING FEE IN
FULL

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/

ORDER FOR CLERK TO CLOSE CASE AND
SERVE COPY OF THIS ORDER ON CDCR
AND COURT FINANCIAL DEPARTMENT

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I.

BACKGROUND

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Plaintiff Ebone Leroy East, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on September 30, 2010, together with an application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915. (Docs. 1, 2.) On October 5, 2010, the Court granted

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Plaintiff’s application, allowing him to proceed in forma pauperis. (Doc. 4.)
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II.

28 U.S.C. § 1915(g) - IN FORMA PAUPERIS STATUS

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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . . under

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this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United States that was dismissed on the grounds

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that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff is

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subject to section 1915(g) and is precluded from proceeding in forma pauperis unless he was, at the

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time the complaint was filed, under imminent 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

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imminent danger exception.2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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Because Plaintiff alleges no facts supporting a finding that he was under imminent danger of serious

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physical injury at the time he filed the Complaint, Plaintiff is ineligible to proceed in forma pauperis

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in this action.4

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III.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s in forma pauperis status in this action is REVOKED;

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2.

The Court’s order granting Plaintiff’s application to proceed in forma pauperis,

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entered on March 23 9, 2010, is VACATED;
3.

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The Court’s order directing payment of the inmate filing fee by the CDCR, entered
on March 23, 2010, is VACATED;

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Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are case numbers 5:09-cv01105-UA-E (CD Cal.) East v. S. Gidcumb, et al. (dismissed on 06/17/2009 for failure to state a claim); 5:09-cv01810-UA-E (CD Cal.) East v. Pace, et al. (dismissed on 10/01/2009 for failure to state a claim); and 5:09-cv02224-UA-E (CD Cal.) East v. San Bernardino County (dismissed on 12/11/2009 for failure to state a claim).
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The Court expresses no opinion on the merits of Plaintiff’s claims.

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Plaintiff alleges that defendants failed to provide adequate medical care and medications for Plaintiff’s ear
and shoulder problems. Doc. 1, court record, pp. 43-68. The Complaint is devoid of any showing that Plaintiff was
under imminent danger of serious physical injury at the time he filed the Complaint. Id.
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According to the Court’s financial records, no payments have been received by the Court for payment of
Plaintiff’s filing fee for this action.

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4.

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This action is DISMISSED, without prejudice to refiling with the submission of the
$350.00 filing fee in full;

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5.

The Clerk is directed to CLOSE this case; and

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The Clerk is directed to SERVE a copy of this order on the Director of the CDCR,

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via the Court’s electronic case filing system, and the Court’s financial department.
IT IS SO ORDERED.

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Dated:
0m8i78

December 23, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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