United States District Court, E.D. California
ORDER
ADOPTING FINDINGS AND RECOMMENDATIONS: (1) GRANTING IN PART
DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS (2) REVOKING PLAINTIFF’S IN FORMA
PAUPERIS STATUS (3) DIRECTING PLAINITFF TO PAY FILING FEE
WITHIN TWENTY-ONE DAYS OF SERVICE OF THIS ORDER (4) GRANTING
DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING
PLAINTIFF’S PAYMENT OF FILING FEE (Doc. Nos. 33, 36,
38)
Plaintiff
is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action brought
pursuant to 42 U.S.C. § 1983. The matter was referred to
a United States magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
Before
the court are defendants’ motions to revoke
plaintiff’s in forma pauperis
(“IFP”) status and to stay the case. (Doc. Nos.
33, 36.) On April 14, 2016, the assigned magistrate judge
issued findings and recommendations, recommending that this
court grant defendants’ motion to revoke
plaintiff’s IFP status pursuant to the three-strikes
provision of 28 U.S.C. § 1915(g). (Doc. No. 38.) The
magistrate judge recommended denying defendants’
request to dismiss plaintiff’s complaint outright, and
instead recommended granting plaintiff an extension of
twenty-one days to pay the required case filing fee in full
or have his suit terminated. (Id. at 6.) The
findings and recommendations directed the parties to file any
objections thereto within fourteen days. (Id.) After
requesting and receiving one extension of time, plaintiff
filed his objections on May 11, 2016. (Doc. Nos. 39, 40, 41.)
On May 31, 2016, defendants filed a reply to
plaintiff’s objections. (Doc. No. 42.) Plaintiff then
filed a “supplemental argument” in support of his
objections on June 13, 2016. (Doc. No. 43.)
According
to his objections and supplemental argument, plaintiff does
not dispute the magistrate judge’s findings that he has
brought three or more prior federal civil actions that were
dismissed on the grounds specified in 28 U.S.C. §
1915(g). Rather, plaintiff argues that the imminent danger
exception of § 1915(g) applies because defendants
withheld prison-supplied food from plaintiff for an extended
period of time and that this denial of food prevented him
from safely injecting his insulin for his diabetes. (Doc.
Nos. 41, 43.) To the extent plaintiff alleges he regained
access to prison-supplied food after October 5, 2013,
plaintiff argues he was only allowed one meal per day instead
of the three meals typically afforded other prisoners, until
January 4, 2014 when he was placed in administrative
segregation. (Doc. No. 41 at 1.) This deprivation of food,
plaintiff argues, resulted in an inability to safely inject
his prescribed insulin. (Doc. Nos. 41, 43.)
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, the court has conducted a de
novo review of this case. Having carefully reviewed the
entire file, including plaintiff’s objections and
supplemental briefing, the court finds the findings and
recommendations to be supported by the record and by proper
analysis and adopts them in full.
Because
there is no dispute plaintiff has previously incurred three
qualifying strikes under 28 U.S.C. § 1915(g), plaintiff
is precluded from proceeding in forma pauperis in
this action unless he is able to demonstrate that he is under
imminent danger of serious physical harm. Under the imminent
danger exception of § 1915(g), a prisoner may use IFP
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 IFP; the
exception does not operate on a claim-by-claim basis or apply
to only certain types of relief.” Id. 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.
Here,
as noted by the magistrate judge, neither plaintiff’s
original complaint nor his amended complaint makes a
plausible allegation that at the time of filing, plaintiff
faced imminent danger of serious physical injury.
Plaintiff’s original complaint, filed October 9, 2013,
stated only that plaintiff “was not allowed to eat any
prison supplied food until 10/5/13.” (Doc. No. 1 at
2.)[1]
It did not allege facts suggesting that plaintiff was then
suffering from an ongoing deprivation of food. Nor did it
allege facts to suggest that any such deprivation complicated
plaintiff’s ability to inject insulin or otherwise
posed an imminent danger to plaintiff. Moreover,
plaintiff’s now-operative amended complaint, filed
November 6, 2014, does not allege any instance of food
deprivation occurring later than September 2013.
(See Doc. No. 24 at 4.) Based on these allegations,
it is therefore not plausible that plaintiff faced an
imminent danger of serious physical injury at the times he
filed those pleadings.[2]
Such
allegations, if expounded upon with respect to a continuing
practice, could conceivably meet the ongoing danger standard
and the imminence prong of the three-strikes exception.
See Andrews, 493 F.3d at 1056-57. However, on
February 3, 2014, plaintiff notified this court that he had
been transferred to the California Medical Facility
(“CMF”). (Doc. No. 12.) Plaintiff’s amended
complaint, which is based on actions that allegedly took
place at the California Substance Abuse Treatment Facility
and State Prison, does not allege that any of the named
defendants work at CMF. (See Doc. No. 24.) Thus, it
is apparent that by the time plaintiff filed his amended
complaint on November 6, 2014, he was not in any imminent
danger of serious physical injury because of these
defendants’ alleged failure to provide him food.
Accordingly, the imminent danger exception to §
1915(g)’s three-strikes provision cannot and does not
apply here. See Andrews, 493 F.3d at 1055; see
also Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999) (finding failure to protect allegations against prison
officials who put an inmate convicted of sexual battery in
general population failed to meet imminent danger standard
because the threat had ceased prior to filing the complaint
and there were no allegations that plaintiff was in imminent
danger of serious physical injury at the time he filed his
complaint or that he was in jeopardy of any ongoing danger);
Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998) (“Allegations that the prisoner faced imminent
danger in the past are insufficient to trigger this exception
to § 1915(g) and authorize the prisoner to pay the
filing fee on the installment plan.”); Winfield v.
Schwarzenegger, No. 2:09-cv-0636-KJN-P, 2010 WL 3397397,
at *2 (E.D. Cal. Aug.27, 2010) (“At the time of filing
the operative . . . complaint, plaintiff was incarcerated at
[CSP-Sacramento]; thus, he is not facing imminent danger of
serious physical injury based on allegations against
defendant . . . at San Quentin State Prison.”)
Accordingly,
1. The April 14, 2016 findings and recommendations (Doc. No.
38) are adopted in full;
2.
Plaintiff s in forma pauperis status is revoked;
3.
Plaintiff is directed to pay the $400 filing fee in full
within twenty-one days of the date of service of this order;
4.
Failure to pay the filing fee in full will result in
dismissal of this action, without prejudice, pursuant to 28
U.S.C. § 1915(g); and
5. This
action shall be stayed pending plaintiffs payment of the
filing fee or, in the alternative, dismissal of the action.
IT IS
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