Bontemps v. Lawaya

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 04/10/17 denying 5 Motion to Proceed IFP. Plaintiff must pay the $400.00 filing fee for this action within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GREGORY C. BONTEMPS,

12

Plaintiff,

13
14

No. 2:16-cv-2424 CKD P

v.

ORDER

M. LAWAYA,

15

Defendant.

16
Plaintiff is a California prisoner proceeding pro se. This proceeding was referred to this

17
18

court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and plaintiff has consented to have all

19

matters in this case before a United States Magistrate Judge. See 28 U.S.C. § 636(c).

20

Plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

21

However, on January 14, 2014 in 2:12-cv-2250 WBS AC P, plaintiff was deemed to have “struck

22

out” pursuant to 28 U.S.C. § 1915(g).1 Judgment was final in that case well before this case was

23
24
25
26
27
28

1

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.
1

1

filed. Furthermore, after 2:12-cv-2250 WBS AC P was commenced on August 30, 2012 and

2

before this action was commenced on October 11, 2016, plaintiff had at least four other cases

3

dismissed for failure to state a claim upon which relief can be granted,2 and therefore those cases

4

count as “strikes” as well.

5

Since plaintiff has struck out, he may only be granted leave to proceed in forma pauperis

6

if the allegations in his complaint suggest he is “under imminent danger of serious physical

7

injury.” Id. There are no such allegations in plaintiff’s complaint. Plaintiff seeks damages for

8

past injuries, not injunctive relief based upon current danger.

9

In light of these facts, plaintiff’s motion to proceed in forma pauperis must be denied.

10

Plaintiff will be granted 14 days within which to submit the $400 filing fee for this action. If

11

plaintiff does not submit the filing fee within 14 days, this action will be dismissed.

12

Accordingly, IT IS HEREBY ORDERED that:

13

1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 5) is denied.

14

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

15

filing fee within 14 days will result in dismissal

16

Dated: April 10, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22

1/md
bont2424.3ks

23
24
25
26
27
28

2

See 2:12-cv-0771 KJN P; 2:12-cv-2406 EFB P; 2:12-cv-3053 JAM EFM P (dismissed because
the pleadings demonstrated plaintiff failed to exhaust administrative remedies prior to filing suit
which amounts to a dismissal for failure to state a claim upon which relief can be granted, see
Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014)); 2:13-cv-00614 EFB P.
2