Dupree v. Mills et al

Filing 7

ORDER Denying 2 Motion to Proceed In Forma Pauperis and Dismissing Action, without Prejudice to Refiling with Submission of $350.00 Filing Fee in Full signed by Magistrate Judge Gary S. Austin on 09/02/2011. CASE CLOSED. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE, JR.,
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Plaintiff,
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vs.
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MISTY MILLS, et al.,
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Defendants.
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____________________________________)

1:11-cv-01416-GSA-PC
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION, WITHOUT
PREJUDICE TO REFILING WITH
SUBMISSION OF $350.00 FILING FEE
IN FULL
(Doc. 2.)
ORDER FOR CLERK TO CLOSE CASE

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Richard Jose Dupree, Jr. ("Plaintiff") is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 22,

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2011, together with an application to proceed in forma pauperis. (Docs. 1, 2.)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that “[i]n

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no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the

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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

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upon which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g)

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and is precluded from proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed,

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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 imminent

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

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Complaint that his identity has been stolen by Misty Mills, a woman who claims to be Plaintiff’s wife

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and the mother of his child.3 Plaintiff may not proceed in forma pauperis in this action, and must submit

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the appropriate filing fee in order to proceed with this action. Therefore, Plaintiff’s application to

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proceed in forma pauperis shall be denied, and this action shall be dismissed, without prejudice to

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refiling with the submission of the $350.00 filing fee in full.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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this action is denied;
2.

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Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma pauperis in

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

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:
6i0kij

September 2, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are case numbers 2:11-cv-00309-EFB (ED Cal.)
Dupree, Jr. vs. Santiago (dismissed on 02/22/2011 for failure to state a claim); 2:11-cv-00263-DAD (ED Cal.) Dupree, Jr. vs. U,S, Courts
of the Eastern Dist. of CA (dismissed on 03/24/2011 as frivolous); and 1:11-cv-00565-OWW-DLB (ED Cal.) Dupree, Jr. vs. Scott
(dismissed on 07/12/2011 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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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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