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Alton E. Dean v. S.H. Wong

April 13, 2012

ALTON E. DEAN, PLAINTIFF,
v.
S.H. WONG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On August 26, 2011, plaintiff consented to the jurisdiction of the undersigned. For the following reasons, it is hereby ordered that the December 7, 2011 order granting plaintiff's request to proceed in forma pauperis is vacated. It is further ordered that plaintiff's request to proceed in forma pauperis is denied pursuant to 28 U.S.C. § 1915(g), and plaintiff is ordered to pay the filing fee.

II. Discussion

Title 28 U.S.C. § 1915(g) provides, [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).

Plaintiff has three or more "strikes" under § 1915(g): Dean v. Sullivan, 98-0717 LKK DAD P (dismissed March 22, 1999 for failure to state a cognizable claim); Dean v. Melching, 00-5522 AWI DLB P (dismissed October 26, 2000 for failure to state a cognizable claim); and Dean v. Cavagnara, 09-0852 SMS P (dismissed October 21, 2009 for failure to state a cognizable claim). Accordingly, plaintiff may proceed with the instant action only if he is under imminent danger of serious physical injury.

Under the imminent danger exception of § 1915(g), a prisoner may use in forma pauperis status to bring a civil action despite three prior dismissals only where the prisoner is under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1056--57 (9th Cir. 2007) ("[A] prisoner who alleges that prison officials continue with a practice that has injured him or others similarly situated in the past will satisfy the 'ongoing danger' standard and meet the imminence prong of the three-strikes exception."). "Prisoners qualify for [this] exception based on the alleged conditions at the time the complaint was filed. And qualifying prisoners can file their entire complaint in forma pauperis; the exception does not operate on a claim-by-claim basis or apply to only certain types of relief." Andrews, 493 F.3d at 1052. However, "the exception applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Id. at 1055.

For the following reasons, the undersigned finds that plaintiff does not meet the imminent physical injury exception to 28 U.S.C. § 1915(g). The background to this finding is set forth herein.

Plaintiff initiated the instant action by filing a petition for writ of habeas corpus, court stamped filed on August 12, 2011. (Dkt. No. 1.) Plaintiff signed this petition on June 6, 2011. (Id.) On September 21, 2011, the undersigned issued an order construing this action as a civil rights action. (Dkt. No. 8.) Plaintiff was ordered to file a complaint within thirty days. (Id.) On December 23, 2011, plaintiff filed a complaint, labeled as an amended complaint. (Dkt. No. 23.) On January 6, 2012, the undersigned dismissed the amended complaint with leave to file a second amended complaint. (Dkt. No. 25.)

On February 28, 2012, plaintiff filed a second amended complaint.*fn1 (Dkt. No. 29.) Named as defendants in the second amended complaint are Correctional Officers Valdez and Casey and Warden Socorro. The second amended complaint contains no specific claims against defendant Socorro.

In the second amended complaint, plaintiff alleges that defendant Correctional Officer Casey worked at the Deuel Vocational Institute ("DVI"). Plaintiff alleges that defendant Casey searched plaintiff's wheelchair twenty different times. Plaintiff alleges that during these searches, defendant Casey fondled plaintiff's catheterized groin area. Plaintiff also alleges that his wheelchair cushion was unprotected, causing plaintiff to suffer pain, bed sores and bladder infections.

In the second amended complaint, plaintiff alleges that on August 16, 2011, he was transferred to R.J. Donovan State Prison. Plaintiff alleges that defendant Valdez was responsible for the supervision of transportation of prisoners. Plaintiff appears to claim that defendant Valdez rode in one of the transport vans. Plaintiff alleges that defendant Valdez retaliated on behalf of defendant Casey by refusing to transport plaintiff in an "ADA" van. Plaintiff also alleges that during this transport, he was subjected to excessive restraints.

At the present time, plaintiff is no longer under an imminent threat of serious injury from defendants because he is no longer housed at DVI where defendant Casey is located, and because there is no claim that he will soon be transferred under the supervision of defendant Valdez.*fn2 However, the issue is whether plaintiff was under an imminent threat of serious physical injury when he filed this action. Pursuant to the mailbox rule, ...


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