Bonilla v. Chappell

Filing 4

ORDER DENYING 2 LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSING ACTION. Signed by Judge Claudia Wilken on 4/11/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/11/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 STEVEN WAYNE BONILLA, 4 5 6 Plaintiff, v. ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSING ACTION KENNETH R. CHAPPELL, Warden, 7 8 No. C 12-0811 CW (PR) Defendant. (Docket no. 2) ___________________________/ 9 Plaintiff, a state prisoner proceeding pro se, seeks leave to United States District Court For the Northern District of California 10 11 proceed in forma pauperis (IFP) in this civil rights action. The 12 Court previously informed Plaintiff that, in accordance with 28 13 U.S.C. § 1915(g), he no longer qualifies to proceed IFP in any 14 civil rights action he files in this Court. 15 Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 16 6:23-7:19. 17 Plaintiff may proceed IFP if he "is under imminent danger of 18 serious physical injury." 28 U.S.C. § 1915(g). 19 See In re Steven The sole exception to this restriction is that The plain language of the imminent danger clause in § 1915(g) indicates that "imminent 20 danger" is to be assessed at the time of filing of the complaint. 21 22 23 See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Here, Plaintiff has not alleged facts that show he was in 24 imminent danger of serious physical injury at the time he filed 25 this complaint. 26 prison regulations that limit him to sending legal mail once a week 27 violate his constitutional right of access to the courts. 28 Moreover, the fact that Plaintiff has been sentenced to death does Rather, in the complaint he alleges only that 1 not, at this time, satisfy the imminent danger requirement. 2 Specifically, he is not in imminent danger of execution because his 3 state habeas petition was pending when he filed this action, and 4 this Court has granted his requests for the appointment of counsel 5 and a stay of execution which he filed in anticipation of his 6 future federal habeas litigation. See Bonilla v. Ayers, No. C 08- 7 8 0471 CW (PR), Docket no. 3. Accordingly, Plaintiff's request to proceed IFP is DENIED. 9 United States District Court For the Northern District of California 10 This action is hereby DISMISSED without prejudice to bringing the 11 claims herein in a future action in which he pays the full filing 12 fee of $350.00.1 13 14 15 16 17 The Clerk of the Court shall enter judgment and close the file. This Order terminates Docket no. 2. IT IS SO ORDERED. DATED: 4/11/2012 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff is advised that, even if he pays the filing fee, any action he files will be subject to review by the Court to determine whether the claims can go forward. 28 U.S.C. § 1915A. Further, before filing any civil rights action in federal court, he must exhaust all administrative remedies with respect to each claim he intends to pursue. 42 U.S.C. § 1997e(a). 2

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