The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation at Corcoran State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at CSP Corcoran.
The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury."
This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. In an order entered in the U.S. District Court for the Northern District of California on January 13, 2000, the court found that in the three years prior, Plaintiff has "filed at least eight pro se prisoner actions dismissed by this court on the ground that they are frivolous, malicious, or fail to state a claim upon which relief may be granted." See, e.g. Sierra v. Terhune, slip op. no. C 98-089 MHP (N.D. Cal. July 28, 1998 (Order of Dismissal); Sierra v. Gomez, slip. op. no. C 97-3336 MHP (N.D. Cal. Dec. 23, 1997)(same); Sierra v. Gomez, slip. op. no. C-97 0939 MHP (N.D. Cal. June 2, 1997)(same).
The Court noted that in the most recent pleading in this case, Plaintiff failed to allege facts that satisfied the requirements of 28 U.S.C. § 1915(g). Plaintiff detailed the history of his medical care at various prisons over the years, but failed to specifically list individual defendants or charge any specific individual defendant with conduct. Plaintiff was advised that he is not entitled to proceed in forma pauperis.
According, on September 24, 2009, Plaintiff was ordered to show cause why he should not be denied leave to proceed in forma pauperis. On November 9, 2009, Plaintiff filed a response to the order to show cause. In his response, Plaintiff sets forth rambling arguments as to why his application to proceed in forma pauperis should not be denied pursuant to 28 U.S.C. § 1915(g). Plaintiff refers to "several subject suspects escapees" that are threatening him. Plaintiff refers to an escape in Texas in 1963. Plaintiff refers generally to the threatened removal of needed medical appliances.*fn1 Plaintiff alleges that he participated in "the arrest, incarceration, or numerous of the identified employees within the Department of Corrections" in 1963 and 1968. Plaintiff alleges that he was part of a federal investigative team.
Plaintiff also details his alleged business dealings with an outside business, and makes confusing allegations regarding a company president's refusal to terminate employees of the California Department of Corrections and Rehabilitation. Plaintiff references the removal of the directors, and allegations that his account has been infiltrated.
Plaintiff also refers to his medical condition. Plaintiff specifically refers to a "lower back disability" as well as exhaustion and overwork. Plaintiff seeks to have a "mechanical bed" placed in his cell, as it would make it easier for his condition. Plaintiff does not allege any specific facts, or charge any named defendant with any conduct indicating that they knew of and disregarded a serious medical condition of Plaintiff's, resulting in injury to Plaintiff.
Plaintiff levels vague allegations that since his return to SHU housing, he has been subjected to threats and harassment. Plaintiff refers to a cycle of violence at CSP Corcoran. Plaintiff alleges that he is being attacked by subject-suspects, including Officer Steubner. Plaintiff was last attacked on 2008 by Officer Steubner, "who alleges his is a monitor using (FBI) voyage instrument of surveillance, Omni-Tec surveillance in usage under his directive supervised by (Ex-FBI) Johnson (Ex-FBI) Anderson, (Omni-Tec being an instrument utilized in the training of U.S. Marines," (Resp. To Order To Show Cause, 9:9-13.)
Plaintiff refers to the "abnormally under the circumstances brought in the complaint" as a motive to "knowing assignment of subject suspects to supervisory positions, surveillance positions, to enable the continuance of harassment (targeting) up to possible murder of this Plaintiff using incarceration matrix and disguise motive." Id. at 9:17. Plaintiff contends that the court must initiate inquiry "not of the Department of Corrections but of Federal investigators." Id. at 23.
Plaintiff essentially argues that the imminent danger standard in 28 U.S.C. § 1915(g) is met in this case because Plaintiff has, in his words, " provided information to the courts that there is record available and that under the circumstances of evidence of said record in history, a motive is established that this Plaintiff is under an immediate threat of harm, death, by subject, suspects, escapees." It appears that Plaintiff argues that he can satisfy the imminent danger standard by alleging conditions that indicate an environment that Plaintiff perceives creates a risk to him. Specifically, Plaintiff contends that he is "under an immediate threat of harm, death, by subject, suspect, escapees." Id. 10:6. Plaintiff also contends that "this Plaintiff has been targeted by 'group' subject, suspects to the extent illegal minimizing of medical treatment in to which to cause, create, reversible damage to lower back, crippling this Plaintiff for life." Id, 10:6-10.
In Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007), the Ninth Circuit adopted the view that "requiring a prisoner to 'allege [ ] an ongoing danger' - the standard adopted by the Eighth Circuit - is the most sensible way to interpret the imminency requirement." Id. at 1056, citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 2003). Andrews held that the imminent danger faced by the prisoner need not be limited to the time frame of the filing of the complaint, but may be satisfied by alleging a danger that is on-going. Plaintiff therefore correctly argues that he can satisfy the imminent danger exception by alleging an on-going threat.
Where Plaintiff fails, however, is that he fails to allege facts indicating that he is under danger of a specific threat. The plaintiff in Andrews alleged facts indicating a particular threat. In that case, the plaintiff alleged that the threat he faced from contagious diseases violated the Eighth Amendment prohibition against cruel and unusual punishment. The plaintiff in Andrews recounted that during his time at Solano he had been 'placed in close proximity with inmates the institution knew or should have know would or could infect me with the disease.' Andrews detailed that during the previous six months, he had been housed with five inmates with contagious disease - two infected with HIV/AIDS, two infected with Hepatitis C, and one infected with Heliobacter pylori. He noted that "[c]urrently, ...