Gregory McClellan v. Fink et al
Filing
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ORDER Revoking Plaintiff's in Forma Pauperis Status and Directing Plaintiff to Pay the $350.00 Filing Fee within Thirty Days, signed by Magistrate Judge Michael J. Seng on 11/28/11. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY McCLELLAN,
Plaintiff,
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ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS AND
DIRECTING PLAINTIFF TO PAY THE
$350.000 FILING FEE WITHIN THIRTY
DAYS
Defendants.
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CASE NO. 1:10-cv-208-MJS (PC)
(Doc. 4)
v.
JOE FINK, et al.,
/
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Plaintiff Gregory McClellan (“Plaintiff”) is a state prisoner proceeding pro se in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to a Magistrate
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Judge handling all maters in this case. (ECF No. 6.)
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Plaintiff is currently detained at Kern County Jail. On February 9, 2010, Plaintiff filed
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a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) The
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Court granted this motion on February 18, 2010. (ECF No. 4.) The Court now finds that
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Plaintiff was granted in forma pauperis status in error.
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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides
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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner
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has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
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action or appeal in a court of the United States that was dismissed on the grounds that it
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is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
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prisoner is under imminent danger of serious physical injury.” A review of the actions filed
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by Plaintiff reveals that Plaintiff is subject to section 1915(g) and is precluded from
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proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed, under
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imminent danger of serious physical injury.1
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The Court has reviewed Plaintiff’s Amended Complaint and finds that Plaintiff does
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not meet the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th
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Cir. 2007). Plaintiff alleges that his rights under the Fourteenth Amended have been
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violated, because he is being unlawfully incarcerated due to his parole violations. The only
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part of Plaintiff’s Amended Complaint that could imply that Plaintiff is subject to imminent
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danger is a single sentence, unconnected with his cause of action, in which Plaintiff alleges
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he suffers from “severe hypertension, anxiety, paranoia, emotional ‘distress,’ and fears
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further harassment will follow.” (Am. Compl., ECF No. 8 at 7.) This does not amount to
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“imminent danger of serious physical injury at the time of filing.” See id. at 1055 (citing 28
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U.S.C. § 1915(g)).
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The Court has reviewed Plaintiff’s Amended Complaint and finds that it alleges no
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additional facts to support a finding that he is, at this time, under imminent danger of serious
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physical injury. Thus Plaintiff may not proceed in forma pauperis and must submit the
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appropriate filing fee in order to proceed with this action. Because the Court previously
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granted Plaintiff leave to proceed in forma pauperis status in this action, the Court revokes
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Plaintiff’s in forma pauperis status and Plaintiff is ordered to submit the filing fee in full within
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thirty days.
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Accordingly, based on the foregoing, the Court HEREBY ORDERS that:
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action is revoked;
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Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s in forma pauperis status in this
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Plaintiff is directed to submit the $350.00 filing fee in full within thirty (30)
days; and
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The Court takes judicial notice of the following cases: McClellan v. Mountain, 1:08-cv-256-LJOGSA (PC) (dism issed for failure to state a claim on 3/5/2009); McClellan v. Fink, 1:08-cv-1326-YNP (PC)
(dism issed for failure to state a claim on 4/1/2009); and McClellan v. Haviland, 1:07-cv-1607-OW W -SMS
(PC) (dism issed for failure to state a claim on 10/19/2009).
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3.
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If Plaintiff fails to pay the $350.00 filing fee in full within thirty (30) days, this
action will be dismissed, without prejudice.
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IT IS SO ORDERED.
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Dated:
ci4d6
November 28, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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