IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 8, 2010
TERRENCE BROWNLEE, PLAINTIFF,
B. SULLIVAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is barred from proceeding in forma pauperis under the three strikes provision of 28 U.S.C. § 1915(g). Brownlee v. Swingle, Case No. 09-cv-3305 JFM (January 7, 2010 Order).*fn1 In the instant case, by an order filed November 9, 2010, plaintiff was ordered to pay the filing fee in full within twenty-eight days, and was cautioned that failure to do so would result in a recommendation that this action be dismissed. On December 2, 2010, plaintiff filed a document entitled "Response and Answer to Court Order," in which plaintiff claims he is entitled to the "imminent danger of serious physical injury" exception to the three strikes provision of 28 U.S.C. § 1915(g). Plaintiff has not paid the $350.00 filing fee.
As noted above, there is an exception to the three-strikes bar, which allows a plaintiff to proceed without prepaying the $350.00 fee when "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Whether a prisoner qualifies for the exception is assessed based on the alleged conditions at the time the complaint was filed and based upon the allegations in the complaint, which are to be construed liberally. Andrews v. Cervantes, 493 F.3d 1047, 1052-55 (9th Cir. 2007).
Plaintiff is presently housed at High Desert State Prison. In his complaint, plaintiff alleges he was transported to court in Sacramento three times and the lengthy transport had "an impact on plaintiff's medical injury." (Dkt. No. 1 at 3.) Plaintiff states he cannot sit down for that long ride. (Id.) In his recent filing, plaintiff reiterates his claim that defendants have caused more injury to his spine and caused him to suffer more pain due to his spinal injury. (Dkt. No. 10.) Plaintiff also claims that he was seen by a doctor at High Desert State Prison during the week of November 15 and 19, and that the doctor wrote plaintiff a chrono stating plaintiff can sit down for 20 to 30 minutes. (Dkt. No. 10 at 2.) Plaintiff now alleges that his "medical issues are being covered-up, his medical injury to his spine has not changed, and to write a new chrono is a violation." (Id.)
On November 9, 2010, this court found that plaintiff's complaint failed to demonstrate plaintiff faced imminent danger of serious physical injury on the date he signed the complaint. (Dkt. No. 6.) This finding was based on plaintiff's failure to demonstrate he faced transport to Sacramento in the near future, or that he had a medical chrono stating he cannot sit in a vehicle seat for a long period of time. (Id. at 2-3.) In his recent filing, plaintiff failed to rebut or address the court's findings regarding future transport. (Dkt. No. 10.) Plaintiff states only that defendants' actions caused plaintiff to be in more pain and caused more injuries to his spine. He does not state he is facing another long transport in the near future. Moreover, plaintiff appears to complain that he was recently written a chrono stating that he can sit down for 20 to 30 minutes. However, this new medical chrono should be of benefit to plaintiff in preventing future long distant transports, and rebuts plaintiff's claim that he faces imminent danger of serious physical injury.*fn2 Finally, the fact that plaintiff seeks money damages only as a form of relief belies his representation that he might be under imminent danger.
In light of the above, plaintiff fails to demonstrate he is facing the imminent danger of serious physical injury. Therefore, based on plaintiff's failure to pay the filing fee in full,*fn3 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).