Ellis v. Harper et al

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/8/2015 REVOKING plaintiff's ifp status; and plaintiff shall pay the $400.00 filing fee for this action within 14 days. Failure to pay the filing fee within 14 days will result in dismissal. (cc: CDCR, Financial)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT J. ELLIS,

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No. 2:14-cv-1949 CKD P

Plaintiff,

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v.

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HARPER, et al.,

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ORDER

Defendants.

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Plaintiff, a California prisoner proceeding pro se, has filed an action for violation of civil

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rights under 42 U.S.C. § 1983. While he is proceeding in forma pauperis, a recent review of court

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records and controlling law reveals that he is precluded from doing so.

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Title 28 U.S.C. § 1915(g) reads as follows:
In no event shall a prisoner bring a civil action . . . [in forma
pauperis] 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.
Plaintiff has had at least four actions dismissed for failure to state a claim in this court:

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2:06-cv-0040 FCD EFB P; 2:11-cv-0363 GEB CKD P; 2:13-cv-2197 CKD P; and 2:14-cv-0705

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EFB P. Plaintiff was incarcerated when he brought these actions and these actions were all

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dismissed before plaintiff’s original complaint and request to proceed in forma pauperis were
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filed in this action. 1 Also, the court has reviewed plaintiff’s original complaint and first amended

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complaint in this action and there is no allegation that plaintiff is under imminent danger of

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serious physical injury.
For the foregoing reasons, plaintiff has “struck out” under 28 U.S.C. § 1915(g) and may

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not proceed in forma pauperis in this action. His in forma pauperis status will be revoked and

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plaintiff will be given 14 days within which to pay the $400 filing fee for this action. 2 If plaintiff

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does not pay the filing fee within 14 days, this action will be dismissed.3

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s in forma pauperis status is revoked; and

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2. Plaintiff shall pay the $400 filing fee for this action within 14 days. Failure to pay the

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filing fee within 14 days will result in dismissal.

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Dated: June 8, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/mp
elli1949.3ks

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Direct review had not concluded with respect to the latter two cases identified above when this
action was filed. However, the United States Supreme Court has recently clarified that a case
dismissed by a district court may amount to a “strike” under 28 U.S.C. § 1915(g) after it has been
dismissed, but before the conclusion of direct review. Coleman v. Tollefson, 135 S. Ct. 1759,
1763-64 (2015).

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If money has already been deducted from plaintiff’s trust account by prison officials and
forwarded to the court to satisfy the filing fee, plaintiff may deduct that amount from the $400 he
owes.
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Plaintiff has consented to have all matters in this action before a United States Magistrate
Judge. See 28 U.S.C. 636(c).

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