Bontemps v. Sahota et al

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/1/2017 VACATING the court's 8/17/2017 order 3 granting plaintiff leave to file a motion to proceed ifp. Plaintiff must 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. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Plaintiff,

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No. 2:17-cv-1685 CKD P

v.

ORDER

P. SAHOTA, et al.,

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Defendants.

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

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

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matters in this case before a United States Magistrate Judge. See 28 U.S.C. § 636(c).
On January 14, 2014, in 2:12-cv-2250 WBS AC P, plaintiff was deemed to have “struck

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

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filed on August 14, 2017. Furthermore, after 2:12-cv-2250 WBS AC P was commenced on

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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.
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August 30, 2012 and before this action was commenced, plaintiff had at least four other cases

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

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count as “strikes” as well.

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

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

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

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past injuries, not injunctive relief based upon current danger.

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In light of these facts, plaintiff will be granted 14 days within which to submit the $400
filing fee for this action. If plaintiff does not submit the filing fee within 14 days, this action will
be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court’s August 17, 2017 order granting plaintiff leave to file a motion to proceed

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in forma pauperis is vacated.

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2. Plaintiff must 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: September 1, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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bont1685.3ks

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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.
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