United States District Court, E.D. California
ORDER VACATING ORDER DENYING PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA PAUPERIS (DOCUMENT 4) ORDER
GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA
PAUPERIS (DOCUMENT 2)
L. BECK UNITED STATES MAGISTRATE JUDGE.
Josh Thomas (“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 July
14, 2015, the Court determined that Plaintiff was subject to
28 U.S.C. § 1915(g), and dismissed the action without
prejudice to refiling accompanied by the filing fee.
Plaintiff appealed the dismissal.
action was remanded by the Ninth Circuit on February 22,
2016. On March 29, 2016, the Court reopened this
action and ordered Plaintiff to file an amended complaint
within thirty (30) days. The Court indicated that it would
make a determination under 28 U.S.C. § 1915(g) once
Plaintiff filed his amended complaint.
filed his First Amended Complaint on May 5, 2016.
is subject to 28 U.S.C. § 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.”
plaintiff has three strikes under § 1915(g), he may
still proceed in forma pauperis if he can show that he was in
imminent danger at the time of filing his complaint.
Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
2007). The “imminent danger” exception
“applies if the complaint makes a plausible allegation
that the prisoner faced imminent physical danger at the time
of filing” the complaint. Id. at 1055. Thus,
to meet the imminent danger exception, the threat or prison
condition must be real and proximate, Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003), and the danger
of serious physical injury must exist at the time the
complaint is filed. Malik v. McGinnis, 293 F.3d 559,
562-563 (2d Cir. 2002); Andrews, 493 F.3d at 1053.
First Amended Complaint, Plaintiff provides more detailed
allegations than those in his original complaint. He contends
that from 2011 to the present, Defendants have not provided
him reasonable accommodations under the American with
Disabilities Act, denied appropriate medical treatment,
falsified and ignored various medical records, and failed to
provide him an operable wheelchair, causing injury and pain
allegations are sufficient to meet the “imminent danger
of serious physical injury” exception under §
1915(g), and Plaintiff shall be granted in forma pauperis
status. See, e.g., Andrews, 493 F.3d at
1056-1057. (“[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.”).
Plaintiff is obligated to make monthly payments in the amount
of twenty percent of the proceeding month's income
credited to Plaintiffs trust account. CDCR is required to
send to the Clerk of the Court payments from Plaintiffs
account each time the amount in the account exceeds $10.00,
until the statutory filing fee is paid in full. 28 U.S.C.
accordance with the above and good cause appearing therefore,
it is HEREBY ORDERED that:
order denying Plaintiff s in forma pauperis ...