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Smith v. Hedgpeth et al Doc.

Case 1:07-cv-01530-OWW-DLB Document 3 Filed 10/31/2007 Page 1 of 2

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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9 JAMES E. SMITH, 1:07cv1530 OWW DLB
10 Plaintiff, ORDER FINDING PLAINTIFF INELIGIBLE TO
PROCEED IN FORMA PAUPERIS IN THIS
11 v. ACTION, AND REQUIRING PLAINTIFF TO
PAY $350.00 FILING FEE
12 WARDEN HEDGPETH, et al.,
13 Defendants.
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15 Plaintiff James E. Smith (“Plaintiff”) is a state prisoner proceeding pro se in this action
16 filed on October 22, 2007.
17 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that
18 “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3
19 or more prior occasions, while incarcerated or detained in any facility, brought an action or
20 appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
21 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under
22 imminent danger of serious physical injury.” Plaintiff has had three or more actions dismissed as
23 frivolous, as malicious, or for failing to state a claim upon which relief may be granted.1 Thus,
24 Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis
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The Court takes judicial notice of Smith v. Holm, 3:06cv5992 SI (N.D. Cal.) (dismissed for failure to state
26 a claim on January 22, 2007); Smith v. Does, et al., 1:07cv509 LJO SMS (E.D.Cal.) (dismissed for failure to state a
claim on May 4, 2007); Smith v. Scribner, 1:06cv310 AW I NEW (DLB) (PC) (E.D.Cal.) (dismissed for failure to
27 state a claim on May 9, 2007); Smith v. Social Security, 1:07cv531 AW I SMS (E.D.Cal.) (dismissed for failure to
state a claim on May 9, 2007); and Smith v. Board of Prison Term Personnel, et al., 1:06cv1434 LJO NEW (DLB)
28 (PC) (E.D.Cal.) (dismissed for failure to state a claim on August 16, 2007).

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Case 1:07-cv-01530-OWW-DLB Document 3 Filed 10/31/2007 Page 2 of 2

1 unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.
2 Plaintiff fails to allege that he is in imminent danger of serious physical injury. His action
3 concerns an allegedly incorrect charge to his prison trust account for eyeglasses. Although he
4 alleges that he has been denied medical information, his allegation is related to his attempts to
5 refund his money. Because Plaintiff has alleged no facts that support a finding that he is, at this
6 time, under imminent danger of serious physical injury, Plaintiff may not proceed in forma
7 pauperis in this action, and must submit the appropriate filing fee in order to proceed with this
8 action.
9 Based on the foregoing, it is HEREBY ORDERED that:
10 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is ineligible to proceed in forma
11 pauperis in this action;
12 2. Plaintiff shall submit the $350.00 filing fee in full within thirty (30) days; and
13 3. If Plaintiff fails to pay the $350.00 filing fee in full within thirty days, this action
14 will be dismissed, without prejudice.
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16 IT IS SO ORDERED.
17 Dated: October 30, 2007 /s/ Dennis L. Beck
3b142a UNITED STATES MAGISTRATE JUDGE
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