Tonie Elmore v. Castro et al

Filing 11

ORDER REVOKING In Forma Pauperis Status; ORDER VACATING Order Granting Application to Proceed In Forma Pauperis 9 ; ORDER VACATING Order Directing CDC to Collect Filing Fee Payments for this Action 9 ; ORDER for Plaintiff to Pay $350.00 Filing Fee within Thirty Days, or Case will be Dismissed, signed by Magistrate Judge Gary S. Austin on 8/23/2012.(30) Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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vs.
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J. CASTRO, et al.,
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Defendants.
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____________________________________)

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I.

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TONIE ELMORE,

1:11-cv-02143-GSA-PC
ORDER REVOKING IN FORMA
PAUPERIS STATUS
ORDER VACATING ORDER
GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS
(Doc. 9.)
ORDER VACATING ORDER
DIRECTING CDC TO COLLECT FILING
FEE PAYMENTS FOR THIS ACTION
(Doc. 9.)
ORDER FOR PLAINTIFF TO PAY
$350.00 FILING FEE WITHIN THIRTY
DAYS, OR CASE WILL BE DISMISSED

BACKGROUND
Tonie Elmore (“Plaintiff”), is a state prisoner proceeding pro se and in forma pauperis in this

civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed this action on December 28, 2011. (Doc. 1.) On January 17, 2012, Plaintiff

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consented to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance.

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(Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On February 15, 2012, the Court granted Plaintiff leave to proceed in forma pauperis pursuant

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to 28 U.S.C. § 1915 and directed the California Department of Corrections to withdraw funds from

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Plaintiff's prison trust account to pay the filing fee for this action. (Doc. 4.)

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II.

THREE STRIKES PROVISION

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The Prison Litigation Reform Act governs proceedings in forma pauperis. 28 U.S.C. 1915.

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

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

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an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury." Plaintiff became subject to section 1915(g) on November

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2, 2000, and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is

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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 imminent

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

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not under imminent danger of serious physical injury at the time he filed the complaint, he is ineligible

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to proceed in forma pauperis in this action and must submit the appropriate filing fee in order to proceed

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with this action.3

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III.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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The Court takes judicial notice of case numbers: 3:00-cv-01275-CRB Elmore v. Clark, et al. (N.D. Cal.) (dismissed
08/25/2000 for failure to state a claim); 3:00-cv-02269-CRB Elmore v. Lamarque. (N.D. Cal.) (dismissed 11/02/2000 for
failure to state a claim); and 3:00-cv-02929-CRB Elmore v. Salinas Valley State Prison (N.D. Cal.) (dismissed 08/25/2000
for failure to state a claim);
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Plaintiff’s claim in this action arises from allegations that prison officials have not located and returned a $500
check written by his mother. The Court expresses no opinion on the merits of Plaintiff’s claims.
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To date, no payment for the filing fee has been received in this action.

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The court’s order of February 15, 2012, which granted Plaintiff’s application to proceed
in forma pauperis, is VACATED;

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3.

The court’s order of February 15, 2012, which directed the California Department of

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Corrections to make payments to the Court from Plaintiff’s prison trust account for

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payment of the filing fee for this action is VACATED;

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Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days;

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5.

The Clerk of Court is directed to serve a copy of this order on:

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(1)

the Director of the California Department of Corrections, and

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(2)

the Financial Department, U.S. District Court, Eastern District of California,

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Fresno Division; and

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6.

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

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IT IS SO ORDERED.

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Dated:
6i0kij

August 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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