Opinion
No. 2:13-cv-1467 DAD P
03-11-2014
JEFFREY E. WALKER, Plaintiff, v. GREER et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636. (Doc. No. 4)
On February 12, 2014, the court denied plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) and ordered him to pay the filing fee for this action within fourteen days. In response to the court's order, plaintiff has not paid the filing fee. He has, however, filed a motion seeking reconsideration of the court's February 12, 2014 order. Therein, plaintiff argues that the court erred when it determined that he did not allege that he was under "imminent danger of serious physical injury" when he filed this action. Specifically, plaintiff reiterates his claim that defendant Greer continues to conduct searches of plaintiff for purposes of sexual gratification and in retaliation for a lawsuit plaintiff previously filed. Plaintiff also reiterates his claim that defendant Greer tried to assault him once by trying to trip plaintiff before placing him on the wall for a search. (Pl.'s Mot. for Recons. at 1-2.)
Once again, the court finds that plaintiff was not "under imminent danger of serious physical injury" at the time he filed this lawsuit, and therefore, the exception to 28 U.S.C. § 1915(g) is not available to him in connection with this action. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2011) ("Instead, the exception applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing."); see also Bontemps v. Salinas, No. 2:12-cv-2185 AC P, 2013 WL 5954911 at *3 (E.D. Cal. Nov. 7, 2013) (plaintiff's allegations concerning defendants' search of him does not satisfy the imminent danger exception); Buchanan v. Clark, No. 1:09-cv-2029 LJO MJS (PC), 2012 WL 6726535 at *2 (E.D. Cal. Dec. 27, 2012) (plaintiff failed to allege he was in imminent danger due to defendants' retaliatory searches and seizures). Accordingly, the court will deny plaintiff's motion for reconsideration.
As noted above, plaintiff has not paid the filing fee for this action. The court has previously warned plaintiff that his failure to pay the filing fee as ordered would result in dismissal of this action without prejudice.
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for reconsideration (Doc. No. 7) is denied; and
2. This action is dismissed without prejudice.
__________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE
DAD:9
walk1467.56(2)