Garrison Johnson v. Cate et al

Filing 5

ORDER DENYING 2 Motion to Proceed In Forma Pauperis and REQUIRING Plaintiff to Pay the $350.00 Filing Fee In Full Within 21 Days, signed by Judge Oliver W. Wanger on 10/21/2010. Filing Fee due by 11/15/2010. (Jessen, A)

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(PC) Garrison Johnson v. Cate et al Doc. 5 1 2 3 4 5 6 7 GARRISON S. JOHNSON, 8 Plaintiff, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Garrison S. Johnson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation, proceeding pro se. On October 14, 2010, v. MATTHEW CATE, et al., Defendants. / ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 2) FILING FEE DUE WITHIN TWENTY-ONE DAYS 1:10-CV-01918-OWW-DLB PC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff filed a motion requesting to proceed in forma pauperis in this action. Proceedings in forma pauperis are 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, 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 became subject to 1915(g) on April 5, 2010, and is precluded from proceeding in forma 1 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 pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.1 The Court has reviewed Plaintiff's complaint and finds that Plaintiff does not meet the imminent danger exception.2 v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Andrews 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. Accordingly, it is HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis, filed October 14, 2010, is DENIED. Plaintiff is required to pay the $350.00 filing fee in full within twenty-one (21) days from the date of service of this order. Failure to timely pay the filing fee will result in dismissal of this action without prejudice. IT IS SO ORDERED. Dated: October 21, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE The Court takes judicial notice of the qualifying cases: Johnson v. W i l l i a m L. MicKinney, et al., 2:04-cv-4080-UA-CW (C.D. Cal.) (dismissed June 2 1 , 2004 for failure to state a claim); Johnson v. William L. McKinney, et a l . , 2:07-cv-8018-UA-CW (C.D. Cal.) (dismissed January 30, 2008 for failure to s t a t e a claim and as frivolous); Johnson v. Cannon, et al., 1:08-cv-0046-AWIG S A (E.D. Cal.) (dismissed April 5, 2010 for failure to state a claim). P l a i n t i f f also has dismissals for two other actions: Johnson, et al. v. B r o w n & Williamson, et al., 2:97-cv-5335-DT-BQR (C.D. Cal.) (dismissed D e c e m b e r 5, 1997), and Johnson v. Rocha, et al., 4:02-cv-00384-SBA (N.D. Cal.) ( d i s m i s s e d December 22, 2003). It is unclear why these two cases were d i s m i s s e d . They were thus not counted strikes pursuant to 28 U.S.C. 1915(g). Plaintiff's claims in this action arise from an alleged violation of t h e Equal Protection Clause of the Fourteenth Amendment. The Court expresses n o opinion on the merits of Plaintiff's claims. 2 1 2

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