Bryant v. Biter et al

Filing 3

ORDER Denying Plaintiff's 2 Motion for Leave to Proceed In Forma Pauperis; ORDER Requiring Plaintiff to Pay $350.00 Filing Fee in full within Thirty Days or Action will be Dismissed signed by Magistrate Judge Michael J. Seng on 06/27/2012. Filing Fee Deadline: 7/31/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN D. BRYANT,
Plaintiff,

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CASE NO. 1:11-cv-1975-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS

v.
MARTIN D. BITER, et al.,

(ECF No. 2)

Defendants.

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ORDER REQUIRING PLAINTIFF TO PAY
$350.00 FILING FEE IN FULL WITHIN
THIRTY DAYS OR ACTION WILL BE
DISMISSED

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Plaintiff Kevin D. Bryant (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983.
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Plaintiff is currently detained at Kern Valley State Prison. On November 30, 2011,
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Plaintiff filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF
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No. 2.)
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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides
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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner
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has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
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action or appeal in a court of the United States that was dismissed on the grounds that it
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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.” A review of the actions filed
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by Plaintiff reveals that Plaintiff is subject to section 1915(g) and is precluded from
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proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under

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imminent danger of serious physical injury.1

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Plaintiff’s Complaint does not set forth the statutory basis for his claims. It appears

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that he wishes to bring a First Amendment freedom of religion action. Plaintiff alleges that

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he is Jewish and requires kosher meals, but his requests for kosher meals are repeatedly

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denied.

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The Court has reviewed Plaintiff’s Complaint and finds that Plaintiff does not meet

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

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2007). While the Court should not delve into an overly detailed analysis of Plaintiff’s claims

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in determining whether the exception is met, Plaintiff must set forth plausible allegations

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that, at the time of filing, he was under imminent danger of serious physical injury.

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Andrews, 493 F.3d at 1055.

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Here, the Court finds that Plaintiff’s allegations do not meet the imminent danger

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exception. There is no suggestion in the Complaint that at the time Plaintiff filed his

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Complaint, he was under imminent danger of serious physical injury arising from his inability

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to procure kosher meals. Therefore, Plaintiff’s motion for leave to proceed in forma

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pauperis shall be denied.

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Accordingly, based on the foregoing, the Court HEREBY ORDERS that:

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1.

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

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2.

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Plaintiff is directed to submit the $350.00 filing fee in full within thirty (30)
days; and

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///

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///

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The Court takes judicial notice of the following cases: Bryant v. Pacheco, et al.,
5:09-cv-01306-UA-FMO (C.D. Cal.)(dism issed on 07/23/2009 as frivolous and for failure to state a claim );
Bryant v. Briones-Colm an, et al., 5:09-cv-01460-UA-FMO (C.D. Cal.)(dism issed on 08/17/2009 as
frivolous and for failure to state a claim ); and Bryant v. Hanks, et al., 2:10-cv-03199-UA-FMO (C.D.
Cal.)(dism issed on 05/07/2010 for failure to state a claim ).

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3.

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If Plaintiff fails to pay the $350.00 filing fee in full within thirty (30) days, this
action will be dismissed, without prejudice.

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IT IS SO ORDERED.

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Dated:
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June 27, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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