The opinion of the court was delivered by: Edward F. Shea United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND AND GRANTING AND DENYING IN PART PLAINTIFF'S MOTION FOR RECONSIDERATION
In May 2009, the Court revoked pro se prisoner Plaintiff Ronnie Brown's in forma pauperis ("IFP") status after concluding that he was a vexatious litigant under 28 U.S.C. § 1915(g)'s three-strikes provision. (Ct. Rec. 22.) Plaintiff moved to amend his complaint, adding various allegations of imminent physical danger in an effort to circumvent section 1915(g)'s IFP procedural bar. After review, the Court grants Plaintiff's Motion to Amend (Ct. Rec. 21) because Plaintiff is entitled to amend his complaint once as a matter of course; the Court denies in part Plaintiff's Motion to Reconsider IFP Status (Ct. Rec. 24) because the new allegations conained in the amended complaint still fail to allege imminent danger. Plaintiff is, however, given a two-week extension to remit the $350.00 filing fee. The reasons for the Court's Order are set forth below.
On October 9, 2008, Plaintiff filed a Complaint alleging that Defendants violated his Fourteenth Amendment procedural due process rights by improperly withdrawing - and not returning - monies from his prison trust account. (Ct. Rec. 1.) Six (6) months passed while Plaintiff's Complaint was assigned to a judge, screened for merit, and then served on Defendants by the U.S. Marshals. Plaintiff did not amend his Complaint during this time.
On May 1, 2009, Defendants moved to revoke Plaintiff's IFP status because he was a vexatious litigant under section 1915(g)'s three-strikes provision, and the narrowly-defined "imminent danger" exception did not apply. (Ct. Rec. 18.)*fn1 Although the Court agreed with Defendants and signed an Order revoking Plaintiff's IFP status on May 13, 2009, a docketing delay prevented the Order from being formally entered until May 19, 2009. (Ct. Rec. 22.) During this window of delay, Plaintiff moved to amend his Complaint and add several allegations of imminent danger arising out of prison overcrowding generally and failure to receive requested medical care specifically. (Ct. Rec. 21.) Plaintiff then asked the Court to reconsider its decision to revoke his IFP status in light of the amended complaint's new allegations. (Ct. Rec. 24.)
A. Plaintiff's Motion to Amend (Ct. Rec. 21)
Federal Rule of Civil Procedure 15 addresses amendments to pleadings and permits a party "to amend its pleading once as a matter of course . . . before being served with a responsive pleading . . . ." FED. R. CIV. P. 15(a)(1). Rule 7(a) provides an exclusive list of what constitutes a responsive pleading: 1) a complaint; 2) an answer to a complaint; 3) an answer to a designated counterclaim; 4) an answer to a cross-claim; 5) a third-party complaint; 6) an answer to a third-party complaint; and 7) a reply to an answer when ordered by the court. FED. R. CIV. P. 7(a). Pretrial motions attacking the pleadings are not responsive pleadings. See McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (finding that a Rule 12(b)(6) motion to dismiss was not a responsive pleading); see also 3-15 MOORE'S FEDERAL PRACTICE - CIVIL § 15.11 (2009).
Here, Defendants have not filed a responsive pleading as defined by Rule 7(a); Plaintiff's amended complaint is therefore permissible.
B. Plaintiff's Motion for Reconsideration (Ct. Rec. 24)
Plaintiff asks the Court to reconsider its decision to revoke his IFP status based on the new allegations contained in the amended complaint. Reconsideration is appropriate if the district court is presented with 1) newly-discovered evidence, 2) an intervening change in controlling law, or 3) evidence that its decision was manifestly unjust. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003); 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
The only plausible basis for reconsideration here is that Plaintiff presented the Court with newly-discovered evidence, i.e., an amended complaint purportedly alleging imminent danger. The Court now turns to these new allegations.
Section 1915(g)'s imminent-danger exception "applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The exception's availability "turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time." Id. at 1053. Moreover, the alleged danger must be "ongoing." Id.
Here, Plaintiff alleges that imminent danger exists because Defendants denied 1) his request for an opthamologist consultation, and 2) him adequate medical treatment for injuries he received in a prison shower accident. Plaintiff's claimed imminent dangers are unpersuasive and do not qualify him for section 1915(g)'s imminent-danger exception for two (2) reasons. First, the alleged denial of an opthamology consultation occurred on one occasion at an unspecified time in the past and is therefore not an "ongoing" danger. Id. Second, claims of past inadequate medical care do not place Plaintiff in imminent and ongoing danger of serious physical injury. See generally id.; see also Ford v. Foti, 2001 U.S. Dist. LEXIS 12086 at *1 (E.D. La. July 25, 2001) (finding that an allegation of inadequate medical care for Hepatitis-C did not demonstrate imminent danger of serious physical injury); Cain v. Shilling, 2001 WL 515263 at *2 (W.D. Va. March 13, 2001) (noting that prisoner did not establish ...