Dupree v. California Department of Corrections et al

Filing 7

ORDER (1) DENYING 2 Motion for Leave to Proceed In Forma Pauperis, (2) Dismissing Action, Without Prejudice, Pursuant to 28 USC 1915(G), and (3) Directing Clerk of Court to Enter Judgment signed by District Judge Anthony W. Ishii on 1/2/2014. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE, JR.,

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Plaintiff,

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v.

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CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,

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Case No. 1:13-cv-02053-AWI-SKO PC
ORDER (1) DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS, (2) DISMISSING ACTION,
WITHOUT PREJUDICE, PURSUANT TO 28
U.S.C. ' 1915(G), AND (3) DIRECTING
CLERK OF COURT TO ENTER
JUDGMENT

Defendants.
(Docs. 1 and 2)

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_____________________________________/

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Plaintiff Richard Jose Dupree, Jr., a state prisoner proceeding pro se, filed this civil rights
action pursuant to 42 U.S.C. § 1983 on December 11, 2013. Plaintiff seeks leave to proceed in
forma pauperis in this case.

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However, Plaintiff is subject to 28 U.S.C. 1915(g), which 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.”1 The Court has reviewed Plaintiff’s complaint and it does not involve imminent

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The Court takes judicial notice of the following United States District Court cases: Dupree v. Santiago, et al., case
number 2:11-cv-00309-EFC (E.D. Cal.) (dismissed on Feb. 22, 2011, for failure to state a claim; affirmed on appeal,
mandate issued Jul. 28, 2011); Dupree v. U.S. Court’s of the Eastern Dist. Of Cal., case number 2:11-cv-00263-DAD
(E.D. Cal.) (dismissed on Mar. 24, 2011, as frivolous; no appeal filed); and Dupree v. U.S. Copyright Off., case

1 danger of serious physical injury to Plaintiff. Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th
2 Cir. 2007). Plaintiff’s claims arise out of building searches conducted on November 27, 2013, and
3 November 29, 2013, during which time he was forced to wait outdoors for hours in cold weather
4 while clad only in boxer shorts, a t-short, socks, and thongs. As a result, Plaintiff alleges he
5 contracted the influenza.
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Plaintiff is not in imminent danger of serious physical injury and therefore, he is not

7 entitled to proceed in forma pauperis.
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Accordingly, the Court HEREBY ORDERS as follows:

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1.

Plaintiff’s motion for leave to proceed in forma pauperis in this action is DENIED;

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2.

This action is DISMISSED, without prejudice to re-filing accompanied by the

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$400.00 filing fee; and
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The Clerk of the Court shall enter judgment.

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IT IS SO ORDERED.

15 Dated: January 2, 2014

SENIOR DISTRICT JUDGE

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27 number 2:11-cv-01700-WBS-KJN (E.D. Cal.) (dismissed on Jul. 28, 2011, as frivolous and for failure to state a claim;
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appeal dismissed on Dec. 22, 2011, for failure to pay filing fee). These strikes were final prior to the date Plaintiff
filed this action. Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011).

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