Hunter v. Kern Medical Center et al

Filing 6

ORDER Revoking Plaintiff's In Forma Pauperis Status; ORDER Vacating Order of March 4, 2014; ORDER Dismissing Action, without Prejudice and Directing Clerk of Court to Enter Judgment; ORDER for Court of Court to Serve this Order on CDCR and Court's Financial Department signed by Magistrate Judge Gary S. Austin on 03/17/2014. CASE CLOSED. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEROY DEWITT HUNTER, ORDER REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) Plaintiff, 12 v. 13 14 1:14-cv-00265-GSA-PC KERN MEDICAL CENTER, et al., ORDER VACATING ORDER OF MARCH 4, 2014 (Doc. 4.) Defendants. 15 ORDER DISMISSING ACTION, WITHOUT PREJUDICE, PURSUANT TO 28 U.S.C. ' 1915(g), AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT 16 17 18 ORDER FOR CLERK OF COURT TO SERVE THIS ORDER ON CDCR AND COURT’S FINANCIAL DEPARTMENT 19 20 ________________________________/ 21 22 Plaintiff Leroy Dewitt Hunter is a state prisoner presently incarcerated at the Lerdo Pre- 23 Trial Facility in Bakersfield, California, proceeding pro se and in forma pauperis in this civil rights 24 action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on 25 February 27, 2014. (Doc. 1.) On February 27, 2014, Plaintiff filed an application to proceed in 26 forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2.) On March 4, 2014, the Court granted 27 Plaintiff leave to proceed in forma pauperis. (Doc. 4.) 28 /// 1 1 On March 7, 2014, Plaintiff consented to Magistrate Judge jurisdiction in this action 2 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 5.) 3 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, 4 the undersigned shall conduct any and all proceedings in the case until such time as reassignment 5 to a District Judge is required. Local Rule Appendix A(k)(3). 6 Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner 7 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 8 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 9 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 10 which relief may be granted, unless the prisoner is under imminent danger of serious physical 11 injury.”1 The Court has reviewed Plaintiff’s Complaint, and his allegations do not satisfy the 12 imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 13 (9th Cir. 2007). Therefore, Plaintiff must pay the $400.00 filing fee if he wishes to litigate these 14 claims.2 15 Accordingly, the Court HEREBY ORDERS as follows: 16 1. Pursuant to 28 U.S.C. ' 1915(g), Plaintiff’s in forma pauperis status is REVOKED; 17 2. The Court’s order entered on March 4, 2014, which granted Plaintiff leave to 18 proceed in forma pauperis and directed the CDCR to make payments for the filing 19 fee from Plaintiff’s prison trust account, is VACATED; 20 3. 21 22 23 24 25 26 27 28 This action is DISMISSED, without prejudice to re-filing accompanied by the $400.00 filing fee; 1 The Court takes judicial notice of the following United States District Court cases: Hunter v. Attorney Gen. State of California, et al., 2:10-cv-00329-EFB (PC) (E.D. Cal.) (dismissed 07/21/2010 as frivolous); Hunter v. Harrington, et al., 1:11-cv-00237-GBC (PC) (E.D. Cal.) (dismissed 09/02/2011 for failure to state a claim); Hunter v. Director of Corr., et al., 1:09-cv-02203-MJS (PC) (E.D. Cal.) (dismissed 10/25/2011 for failure to state a claim; and Hunter v. Director of Corr., et al., 1:10-cv-00099-GSA (PC) (E.D. Cal.) (dismissed 10/31/2011 for failure to state a claim). These strikes were final prior to the date Plaintiff filed this action. Silva v. Di Vittorio, 658 F.3d 1090, 10981100 (9th Cir. 2011). 2 To date, the Court has not received any payment for Plaintiff’s filing fee in this case. (Court Financial Records.) The filing fee for this action is $350.00 plus a $50.00 administrative fee. 28 U.S.C. § 1914. The $50.00 administrative fee does not apply to persons granted in forma pauperis status. Id. Therefore, Plaintiff now owes a $400.00 filing fee. 2 1 4 The Clerk of the Court shall enter judgment; and 2 5. The Clerk of the Court shall serve this order on: 3 (1) 4 The Director of the CDCR, via the court's electronic case filing system (CM/ECF), and 5 (2) 6 The Financial Department, U.S. District Court, Eastern District of California, Fresno Division. 7 8 9 IT IS SO ORDERED. Dated: March 17, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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