Summary
rejecting "a facial attack on the constitutionality of 28 U.S.C. § 1915(g)" as meritless after Polanco
Summary of this case from Barbour v. Attorney Gen. of VirginiaOpinion
9:06-CV-1288.
September 28, 2009
LARRY RODRIGUEZ, Plaintiff, pro se, 99-A-3278, Marcy, NY.
HEATHER R. RUBINSTEIN, ESQ., Asst. Attorney General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, Attorney for State Defendants, Department of Law, The Capitol, Albany, New York.
DECISION and ORDER
Plaintiff, Larry Rodriguez, brought this civil rights action pursuant to 42 U.S.C. § 1983. By Report-Recommendation dated July 16, 2009, the Honorable Randolph F. Treece, United States Magistrate Judge, recommended that plaintiff's status as proceeding in forma pauperis be revoked; that plaintiff's amended complaint (Docket No. 5) be conditionally dismissed until such time as plaintiff has payed the entire $350.00 filing fee; and that if plaintiff does not submit the $350.00 filing fee within thirty days form the date of the order adopting the report-recommendation, his complaint be dismissed. The plaintiff has timely filed objections to the report-recommendation.
Based upon a careful review of the entire file, including the portions to which the plaintiff has objected, and the recommendations of Magistrate Judge Treece, the Report-Recommendation is accepted and adopted in all respects.See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
1. Plaintiff's in forma pauperis status is REVOKED;
2. Plaintiff's amended complaint (Docket No. 5) is CONDITIONALLY DISMISSED until such time as plaintiff has payed the entire $350.00 filing fee;
3. If plaintiff does not submit the $350.00 filing fee within thirty days (30) from the date of this order, the complaint is DISMISSED without further order of this court; and
4. In that event, the Clerk is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.