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Lonnie Clark Williams, Jr v. Edmund F. Brennan

October 1, 2012

LONNIE CLARK WILLIAMS, JR., PLAINTIFF,
v.
EDMUND F. BRENNAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff alleges that defendants, all of whom are either judges or clerks of the United States District Court for the Eastern District of California, have conspired with each other to deny plaintiff her rights to sue and to criminally prosecute prison officials.*fn1 Plaintiff alleges that defendants have also aided and abetted prison officials who are poisoning plaintiff. Plaintiff, who is a transsexual, further alleges that defendants have discriminated against plaintiff.

Plaintiff seeks unspecified injunctive and declaratory relief, and also requests criminal charges be made against defendants officially and individually.

Although plaintiff has filed an application to proceed in forma pauperis, the application is incomplete, because plaintiff has not submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

Three Strikes

28 U.S.C. § 1915 generally permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However,

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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).

The plain language of the statute (§ 1915(g)) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999).

This action may be barred by 28 U.S.C. § 1915(g). A review of court records reflects that, on February 6, 2012, this court revoked plaintiff's in forma pauperis status after finding that plaintiff had suffered three strikes for purposes of section 1915(g). See Williams v. Gomez et al., 2:11-cv-0426 GEB EFB P, Doc. Nos. 40, 45. The court additionally found that plaintiff's allegations of serious physical injury -- namely, that prison officials were poisoning her food and not providing her with HIV medication -- were not plausible and did not support application of the imminent danger exception. See id., Doc. 40 at 3. But see Williams v. Gomez, U.S. Court of Appeals for the Ninth Circuit Case No. 12-15376, Doc. No. 9 (order filed June 12, 2012 granting appellant/plaintiff's motion to proceed in forma pauperis on appeal of district court's order granting appellees/defendants' motion to revoke in forma pauperis status).

A further review of court records reflects that plaintiff has filed at least three other civil rights actions in this court that have been dismissed for failure to state a claim. See Williams v. California State Prison - Corcoran, CV-F-99-6612-OWW-SMS-P, Doc. No. 13 (Judgment entered Jan. 31, 2000, dismissing complaint without prejudice for failure to state a claim); Williams v. D. Lopez, CV-F-99-6648-REC-SMS-P, Doc. No. 7 (Judgment entered Jan. 31, 2000, dismissing complaint without leave to amend for failure to state a claim); Williams v. Board of Prison Terms, CV-F-01-5526 AWI-HGB-P, Doc. No. 25 (Judgment entered December 20, 2001, dismissing complaint without leave to amend for failure to state a claim).

In this case, plaintiff appears to anticipate the court's Three Strikes analysis, and alleges that she is under imminent danger of serious physical injury because her food is being poisoned. Notably, plaintiff does not allege that any of the defendants are poisoning her food, and otherwise fails to allege how prosecution of the claims raised in this particular complaint will resolve the imminent danger.

Section 1915(g) does not explicitly read that the imminent physical danger alleged in order to overcome section 1915(g)'s bar must also be the subject of the complaint. However, at least one circuit court has determined that there must be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status and the legal claims asserted in the complaint. See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). "In deciding whether such a nexus exists, we will consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a ...


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