Dean v. Wong et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/29/11 DENYING 6 Motion to Proceed IFP. Plaintiff shall pay the $350 filing fee within 30 days; and plaintiffs failure to comply with this order will result in dismissal of this action. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALTON E. DEAN,
Plaintiff,
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No. CIV S-11-1468 EFB P
Defendants.
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ORDER
vs.
WONG, et al.,
/
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28
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U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See 28 U.S.C.
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§ 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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Plaintiff requests leave to proceed in forma pauperis. The request must be denied
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because has not demonstrated he is eligible to proceed in forma pauperis. A prisoner may not
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proceed in forma pauperis,
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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.
28 U.S.C. § 1915(g). It appears that on at least three prior occasions, plaintiff brought actions
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while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim
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upon which relief may be granted.1 See Dean v. Sullivan, No. CIV 2:98-0717-LKK-DAD (E.D.
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Cal.) (March 22, 1999 Order dismissing action for failure to state a cognizable claim); Dean v.
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Blanas, No. CIV 2:02-1122-LKK-GGH (E.D. Cal) (March 6, 2003 Order adopting February 11,
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2003 Findings and Recommendations to dismiss action for failure to state a claim); and Dean v.
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Andreasen, No. CIV 2:02-0881-DFL-GGH (E.D. Cal.) (January 8, 2004 Order dismissing action
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for failure to state a claim).
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Further, it does not appear that plaintiff was under imminent threat of serious physical
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injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d
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1047, 1053 (9th Cir. 2007). Rather, plaintiff claimed that defendant Carey was interfering with
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plaintiff’s “wheelchair pushers” by repeatedly inspecting plaintiff’s wheelchair cushion, and that
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the Aspirin or Tylenol with codeine that plaintiff was receiving twice a day, was not adequately
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relieving his pain. See Dckt. Nos. 1 (pages 1, 9, 14), 4 (§ IV), 7 (pages 1-2, 6-7).2 Plaintiff’s
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allegations do not demonstrate that he suffered from imminent danger of serious physical injury
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at the time he filed his complaint. Thus, the imminent danger exception does not apply.
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Accordingly, it is hereby ORDERED that:
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1. Plaintiff’s June 23, 2011 application to proceed in forma pauperis is denied;
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2. Plaintiff shall pay the $350 filing fee within 30 days; and
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3. Plaintiff’s failure to comply with this order will result in dismissal of this action. See
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28 U.S.C. § 1914(a).
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Dated: November 29, 2011.
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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For ease of reference, all references to page numbers in plaintiff’s filings are to those
assigned via the court's electronic filing system.
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