Dupree v. Denney

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 07/26/16 denying 2 Motion to Proceed IFP. Plaintiff shall pay the $400.00 filing fee no later than 14 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE, JR.,

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No. 2:16-cv-1271 CKD P

Plaintiff,
v.

ORDER

ANDREA DENNEY,
Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983 along with an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a),

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1915(a). Plaintiff alleges that defendant, a prison law librarian, obstructed his access to the courts

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in May 2016. (ECF No. 1.)

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28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

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and prosecution of any suit without prepayment of fees by a person who submits an affidavit

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indicating that the person is unable to pay such fees. However,

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[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding 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.
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28 U.S.C. § 1915(g).

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Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28

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U.S.C. § 1915(g). Dupree v. U. S. Copyright Office, No. 2:11-cv-1700 WBS KJN, Order dated

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July 28, 2011 (adopting June 30, 2011 findings and recommendations and deeming dismissal for

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frivolousness plaintiff’s third strike). The court takes judicial notice of the two other cases

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identified therein as § 1915(g) strikes against plaintiff, which were dismissed as frivolous or for

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failure to state a claim.1

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The imminent danger applies only if it is clear that the danger existed when the complaint

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was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent

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danger that are overly speculative or fanciful may be rejected. Id. at 1057, n.11. Having

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reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged “imminent

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danger of serious physical injury” under § 1915(g).

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In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this
action; otherwise, it will be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is denied; and

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2. Plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this

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order. Failure to comply with this order will result in dismissal of this action.

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Dated: July 26, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / dupr1271.threestrikes

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Dupree v. United States District Court, No. 2:11-cv-0263 DAD (ECF No. 10); Dupree v.
Santiago, et al., No. 2:11-cv-0309 EFB (ECF No. 7).
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