ORDER REVOKING IN FORMA PAUPERIS STATUS PLAINTIFF IS ORDERED TO PAY REMAINING BALANCE OF FILING FEE WITHIN THIRTY DAYS
Christopher Simmons ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 13, 2009. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 9.) This action proceeds on Plaintiff's Third Amended Complaint, which has not yet been screened by this Court. (ECF No. 28.) No other parties have appeared.
Plaintiff brings this civil rights action against various California Department of Corrections and Rehabilitation ("CDCR") employees, medical staff, the CDCR itself, and Kern Valley State Prison, among others. Plaintiff alleges a multitude of violations including interference with access to courts and retaliation for exercising his free speech rights both in violation of the First Amendment, due process violations, inadequate medical care in violation of the Eighth Amendment, equal protection violations, and actions under the American's with Disabilities Act, among others.
A review of the record of actions and appeals filed by Plaintiff in the United States District Court and in the Ninth Circuit revealed that Plaintiff filed three or more actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Relying on Section 1915(g), the Court ordered that Plaintiff show cause why he did not meet the three-strike criteria and why his in forma pauperis ("IFP") status should not be revoked. (ECF No. 30.) Plaintiff was given thirty days to respond.
On May 25, 2011, Plaintiff filed his response arguing imminent danger at the time of the complaint: 1) imminent danger must have been found when the IFP order was granted, and 2) Plaintiff remains in imminent danger. (ECF No. 31.) The pleading goes on, at some length, about another case of his that is also before this Court, requests severance of state claims, details events that occurred while he was ADA chairman, states concerns about placement of lockers in cells, and makes the statement that he "remained under imminent danger until and after his transfer" (ECF No. 31, p. 4), among other things.
II. LEGAL STANDARD AND ANALYSIS
Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 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 physical injury. 28 U.S.C. § 1915(g).*fn1 Determining whether Plaintiff's actions and appeals count as strikes under Section 1915(g) requires the Court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if, in fact, "the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
As previously noted in the Show Cause Order, the Court took judicial notice that Plaintiff had two prior actions dismissed for being frivolous and/or for failing to state a claim for which relief can be granted under Section 1983 and three appellate cases dismissed based on a similar finding and Plaintiff's subsequent failure to pay the filing fee.*fn2
Therefore, as previously found in Simmons v. Clark, 88 Fed.Appx. 275, 2004 WL 363452, No. 03-15439 (9th Cir.), Plaintiff has three or more strikes and became subject to Section 1915(g) well before filing this action on April 13, 2009.
Plaintiff now argues, pursuant to Section 1915(g), that his original complaint does include allegations that he was "under imminent danger of serious physical injury." Plaintiff is correct in that he made the conclusory allegation that he was in imminent danger. Plaintiff included the phrase "under imminent danger of serious physical injury" in the title of his original complaint. Plaintiff also repeatedly stated that he suffered serious physical injury and remained under imminent danger of physical injury, and that he feared for his safety. However, these statements appear to be unfounded as they are not explained by any additional facts nor is any imminent danger obvious from his statement of the case and the alleged claims. Plaintiff does not explain why he feared for his safety. He does state that he was threatened by staff. However, verbal abuse is not sufficient to demonstrate imminent harm of physical danger. Further, it does not appear from the complaint that he had any reason to fear for his safety or was in any form of imminent danger. Plaintiff's original complaint makes several claims including interference with legal mail and access to courts both, apparently, in retaliation for filing grievances, medically-related complaints, and ADA-related complaints.
It appears to the Court that the only allegations having any possible connection to imminent danger are his pain medication allegations. Plaintiff details bits and pieces of his medical history stating that he was given pain medication; medical personnel reduced the amount he was given daily; the dosage was then increased; he was "shorted" pain medication; and that he eventually received pain medication three times per day again. It appears to the Court that, at the time of the original complaint, Plaintiff was receiving pain medication, though he occasionally disagreed with the dosage. Thus, these allegations do not qualify as imminent danger.
Plaintiff stated that disabled inmates were in imminent danger due to the placement of lockers in the prison cells and their sharp edges. However, it appears to the Court that Plaintiff was expressing a possibility of harm due to the placement of the lockers in the cell. A ...