Dearwester v. California Department of Corrections and Rehabilitation

Filing 6

ORDER DENYING 2 Motion to Proceed IFP and REQUIRING Payment of Filing Fee In Full Within Twenty-One Days, signed by Magistrate Judge Michael J. Seng on 5/27/2015. (Marrujo, C)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

FRANK LEE DEARWESTER,

13
14
15
16

Plaintiff,
v.

CASE No. 1:15-cv-00694-MJS
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS AND
REQUIRING PAYMENT OF FILING FEE
IN FULL WITHIN TWENTY-ONE DAYS

CDCR, et al.,
(ECF No. 2)
Defendants.

17
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed
18
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He has consented to Magistrate Judge
19
jurisdiction. (ECF No. 5.) On May 6, 2015, Plaintiff filed a motion to proceed in forma
20
pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)
21

The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring

22
a civil action . . . under this section if the prisoner has, on 3 or more occasions, while
23
incarcerated or detained in any facility, brought an action or appeal in a court of the
24
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
25
state a claim upon which relief may be granted, unless the prisoner is under imminent
26

danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff has had three or more

27
actions dismissed as frivolous, as malicious, or for failing to state a claim upon which
28

1

relief maybe granted.1
To meet the imminent danger exception, the complaint must plausibly allege “that

2
3

the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”

4

Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007).
Plaintiff’s complaint nowhere states that he faces any danger, imminent or

5
6

otherwise. Instead, he attempts to challenge CDCR’s religious meals program on

7

constitutional and RLUIPA grounds.
The Court concludes that Plaintiff’s in forma pauperis application should be

8
9

denied because he has accrued three or more strikes and was not under imminent

10

danger of serious physical harm at the time this action was initiated. 28 U.S.C. §

11

1915(g). Plaintiff will be provided with the opportunity to pay the filing fee in full.

12

Based on the foregoing, it is HEREBY ORDERED that:

13

1.

Plaintiff's in forma pauperis application (ECF No. 2) is DENIED,

14

2.

Plaintiff must pay the $400 filing fee in full within twenty-one days of

15

service of this order, and
3.

16

If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of

17

service of this order, all pending motions will be terminated and this action dismissed

18

without prejudice.

19
20

IT IS SO ORDERED.

21

Dated:

May 27, 2015

/s/

22
23
24
25
26
27
28

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
1

The Court takes judicial notice of the following United States District Court cases: Dearwester v.
Ramirez, et al., 2:13-cv-02065-KJN (E.D. Cal.) (dismissed December 20, 2013 for failure to state a claim;
no appeal taken); Dearwester v. United States, et al., 2:13-cv-02536 (E.D. Cal.) (dismissed February 13,
2014 for failure to file amended complaint after original complaint failed to state a claim; no appeal taken);
and Dearwester v. Sacramento Cty. Sheriff’s Dept., 2:13-cv-02062-AC (E.D. Cal.) (dismissed April 28,
2014 for failure to file amended complaint after original complaint failed to state a claim; motion for leave to
file amended complaint denied January 5, 2015 because amended complaint also failed to state a claim;
no appeal taken); and Dearwester v. Parkhurst, et al., 2:13-cv-02530-CKD (E.D. Cal.) (dismissed January
2, 2014 for failure to state a claim; no appeal taken). A strike accrues as soon the trial court dismisses on
statutorily enumerated grounds, even if the dismissal is the subject of an appeal. Coleman v. Tollefson,
135 S.Ct. 1759, at *4 (2015).

2