Claiborne v. Kosher et al

Filing 8

ORDER signed by Senior Judge Lloyd D. George on 3/29/11: Plaintiff's Request to Proceed In Forma Pauperis is DENIED 2 . Plaintiff's Complaint is DISMISSED 1 . Plaintiff's Motion to Appoint Counsel is DENIED 7 . (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 DENNIS G. CLAIBORNE, 11 Plaintiff, 12 v. 13 KOSHER, et al., 14 Defendants. 15 16 17 Plaintiff is a prisoner proceeding pro se who has filed a complaint pursuant to 42 18 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. The Court has previously determined that Plaintiff cannot bring a civil 20 action under §1915 because he has filed more than three cases which were dismissed as 21 frivolous, malicious, or for failing to state a claim upon which relief could be granted. See 22 28 U.S.C. 1915(g) 23 Section 1915(g), however, contains an exception for complaints which allege the 24 plaintiff is under "imminent danger of serious physical injury." While the plaintiff asserts 25 that his complaint is filed under the "imminent danger clause," a review of his complaint 26 ORDER Case No. 2:08-cv-01607-LDG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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refutes the assertion. Plaintiff alleges that, on a date nearly two years prior to the filing of his complaint, he was denied access to an elevator in the Yard 1 & 2 Education building at California State Prison - Solano. Ultimately, he alleges, he fell down the stairs injuring his back. He further alleges that he has subsequently been transferred to the High Desert State Prison. Plaintiff alleges that he has been treated for his injuries. The present complaint concerns the asserted continued denial of elevator access at a prison where the defendant is no longer housed. Accordingly, as the present complaint alleges facts establishing that the plaintiff is not under imminent danger of serious physical injury, THE COURT ORDERS that Plaintiff's Request to Proceed In Forma Pauperis (#2) is DENIED; THE COURT FURTHER ORDERS that Plaintiff's Complaint (#1) is DISMISSED. THE COURT FURTHER ORDERS that Plaintiff's Motion to Appoint Counsel (#7) is DENIED.

DATED this ______ day of March, 2011.

Lloyd D. George United States District Judge

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