Gordon v. Fresno County Jail, et al.

Filing 7

ORDER Denying Plaintiff's Motion for Leave to Proceed in Forma Pauperis 2 , and Dismissing Action, without Prejudice to Refiling with Submission of $350.00 Filing Fee in Full, signed by Judge Oliver W. Wanger on 3/28/11. CASE CLOSED. (Verduzco, M)

-SMS (PC) Gordon v. Fresno County Jail, et al.

Doc. 7

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Plaintiff Alpheous E. Gordon, a prisoner proceeding pro se this civil rights action pursuant 16 to 42 U.S.C. § 1983, filed a complaint on February 15, 2011. Plaintiff seeks leave to proceed in 17 forma pauperis pursuant to 28 U.S.C. § 1915. On February 15, 2011, the Magistrate Judge issued 18 an order to show cause why Plaintiff's application to proceed in forma pauperis should not be 19 denied. Plaintiff was given thirty days to respond. More than thirty days have passed and Plaintiff 20 has failed file a response. 21 Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under 22 this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 23 facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 24 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 25 prisoner is under imminent danger of serious physical injury." Plaintiff is subject to section 1915(g) 26 and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, 27 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

ALPHEOUS E. GORDON, Plaintiff, v. FRESNO COUNTY JAIL, Defendant.

CASE NO. 1:11-cv-000216-OWW-SMS PC ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $350.00 FILING FEE IN FULL (ECF Nos. 1 and 2) /

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

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. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff alleges no facts supporting a finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed in forma pauperis in this action. Accordingly, it is HEREBY ORDERED that: 1. 2. Plaintiff's motion for leave to proceed in forma pauperis in this action is denied; and This action is dismissed, without prejudice, for refiling with the submission of the $350.00 filing fee in full. IT IS SO ORDERED. Dated: March 28, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

1 The Court takes judicial notice of Gordon v. Fresno County Jail, No. 1:07-cv-01480-OW W -MJS (dismissed September 23, 2009, for failure to state a claim); Owen v. Fresno County Jail, No. 1:07-cv-01555-LJOGSA (dismissed August 7, 2009, for failure to state a claim, court records indicate that Plaintiff is also known as Orville Owen); and Gordon v. P.S.I., No. 1:09-cv-00228-OW W (dismissed February 11, 2009, as frivolous).

2