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Alkebu-Lan v. Dickinson

United States District Court, E.D. California

March 31, 2014

SHAI ALKEBU-LAN, Plaintiff,
v.
K. DICKINSON, et al., Defendants.

ORDER

LAWRENCE K. KARLTON, District Judge.

Defendants have filed a motion for reconsideration of this court's July 10, 2013 order (ECF No. 44) declining to adopt the magistrate judge's April 16, 2013 finding, made in connection with consideration of defendants' March 6, 2013 motion to revoke plaintiff's in forma pauperis status, that plaintiff has failed to demonstrate that he was "under imminent danger of serious physical injury" within the meaning of 28 U.S.C. § 1915(g) when he filed the instant action. Plaintiff opposes the motion, and defendants have filed a reply.[1]

Defendants seek reconsideration of the court's July 10, 2013 order, contending that the court failed to address a dispositive argument previously raised by defendants in their reply to plaintiff's objections to the magistrate judge's findings and recommendations.[2] Specifically, there and here defendants contend plaintiff's original complaint cannot plausibly suggest plaintiff was in "imminent danger of serious physical injury" at the time the action was filed because the challenged events occurred at California Medical Facility (CMF) and plaintiff had been transferred to California State Prison-Solano (CSP-Solano) before he filed this action.

At issue is whether the facts alleged in plaintiff's original complaint are sufficient to satisfy the requirements of 28 U.S.C. §1915(g), which prevent inmates who have had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon relief may be granted, from proceeding in forma pauperis "unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). This "exception applies if the complaint makes a plausible allegation that the prisoner faced imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes , 493 F.3d 1047, 1055 (9th Cir. 2007).

The allegations of imminent harm in the original complaint are as follows:

From 11-25-2008 to present petitioner's life has been under imminent danger of serious physical injury... whereas Lt. Pulsipher, J., Sergeant Jones, S., and Guard Brown, R. et al. falsified a CDC 115, RVR Log # CMF 01-P-1208-010 which they knew not to be true; thereby, subjected petitioner to a series of psychological and physical tortures, including lacing his canteen with hallucinogenic [sic] drugs which cause mental health issues/placement, near death and stalking/threatening petitioner's family.

Complaint filed September 14, 2010 (ECF No. 1) at 3. The events complained of occurred at California Medical Facility (CMF); plaintiff was incarcerated at California State Prison-Solano (CSP-Solano) when he filed this action. See Complaint (ECF No. 1), passim. Although CSP-Solano is proximate to CMF, none of the three defendants who allegedly committed the acts complained of, all of whom worked at CMF, could plausibly have been continuing those acts at the time the complaint was filed.[3] Moreover, the allegations of the complaint do not suggest that those actions continued into his placement at CSP-Solano.[4]

For the foregoing reasons, the court finds that plaintiff has failed to adequately allege that he was faced with "imminent danger of serious physical injury" at the time he filed this action. Accordingly, defendants' motion for reconsideration will be granted, plaintiff's in forma pauperis status will be revoked, and this action will not proceed further unless plaintiff pays the $350.00 filing for this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's April 15, 2013 motion for extension of time (ECF No. 40) is granted;

2. Plaintiff's April 16, 2013 opposition to defendants' motion to revoke plaintiff's in forma pauperis status is deemed timely filed;

3. Defendants' July 17, 2013 motion for reconsideration (ECF No. 45) is granted;

4. Defendants' March 6, 2013 motion to revoke plaintiff's in forma pauperis status is granted;

5. Plaintiff is granted thirty days from the date of this order in which to pay the $350.00 filing fee for this action; and

6. Failure to pay the filing fee as required by this order will result in the dismissal of this action.


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