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Bradford v. Portillo

United States District Court, Ninth Circuit

November 19, 2013

RAYMOND ALFORD BRADFORD, Plaintiff,
v.
M. PORTILLO, et al., Defendants.

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS (Document 4) ORDER REQUIRING PLAINTIFF TO PAY FILING FEE IN FULL WITHIN FOURTEEN DAYS OR ACTION WILL BE DISMISSED

ANTHONY ISHII, Senior District Judge.

Plaintiff Raymond Alford Bradford ("Plaintiff") is a California state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 24, 2013. Plaintiff has not paid the required filing fee for this case and, for the reasons discussed below, cannot proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

A. SECTION 1915(g)

Plaintiff is subject to section 1915(g), which 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).

Plaintiff has had three or more actions dismissed as frivolous or for failing to state a claim.[1] Thus, he may proceed in forma pauperis only if he is in imminent danger. The determination whether Plaintiff is under imminent danger of serious physical injury is made based on the conditions at the time the complaint is filed, and the allegation of imminent danger must be plausible. Andrews v. Cervantes , 493 F.3d 1047, 1053-1054 (9th Cir. 2007).

B. PLAINTIFF'S ALLEGATIONS

Plaintiff is currently incarcerated at California State Prison, Corcoran. He names Correctional Officers M. Portillo and J. Cole as Defendants.

Plaintiff alleges that on August 18, 2012, Defendants used excessive force and denied him use of his wheelchair. Plaintiff, who is disabled, was in handcuffs. When he requested his assigned wheelchair, Defendants refused. When Plaintiff asked to see a supervisor, Defendants grabbed Plaintiff by the wrist and bent it backwards, dislocating his left wrist and inflicting pain. Plaintiff contends that Defendants are responsible for his injuries and that the excessive force was not justified. He further contends that he is in pain daily and is being denied treatment to fix his left wrist.

For relief, Plaintiff requests monetary damages.

C. DISCUSSION

Here, Plaintiff makes no claim that he is in imminent danger of serious physical injury. Rather, he alleges an instance of excessive force that occurred in August 2012 and resulting pain in his wrist. Plaintiff's pain and treatment issues, however, do not place him in imminent danger of serious physical injury at the time the complaint was filed. Accordingly, he is not entitled to proceed under the imminent danger exception.

D. ORDER

For the reasons stated, it is HEREBY ORDERED as follows:

1. Plaintiff's application to proceed in forma pauperis (Document 4) is DENIED;
2. Plaintiff shall pay the $400.00 filing fee in full within fourteen (14) days from the date of service of this order; and
3. If Plaintiff fails to pay the $400.00 filing fee in full within fourteen days, this action shall be dismissed without prejudice.

IT IS SO ORDERED.


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