United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS IN
THIS ACTION BE DENIED (ECF No. 2)
August 1, 2016, Plaintiff Seavon Pierce, a state prisoner
proceeding pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983, along with a motion to proceed in
forma pauperis, 28 U.S.C. § 1915(a). (ECF Nos. 1 and 2.)
However, the Court finds that Plaintiff is subject to section
1915(g) of the statute, and he may only proceed in forma
pauperis if he has met the imminent danger exception. 28
U.S.C. § 1915(g); Andrews v. Cervantes, 493
F.3d 1047, 1051-1052 (9th Cir. 2007).
Prison Litigation Reform Act of 1995 (PLRA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011). Pursuant to the PLRA, the in forma
pauperis statue was amended to include section 1915(g), a
non-merits related screening device which precludes prisoners
with three or more “strikes” from proceeding in
forma pauperis unless they are under imminent danger of
serious physical injury. Andrews, 493 F.3d at 1050.
The statute 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).
is subject to section 1915(g) because on three or more
occasions he has filed actions that have been dismissed on
the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. The issue is
whether Plaintiff has met the imminent danger exception,
which requires Plaintiff to show that he is under (1)
imminent danger of (2) serious physical injury and which
turns on the conditions he faced at the time he filed suit on
August 1, 2016. Andrews, 493 F.3d at 1053-1056.
Conditions which posed imminent danger to Plaintiff at some
earlier time are immaterial, as are any subsequent
conditions. Id. at 1053. While the injury
requirement is merely procedural rather than a merits-based
review of the claims, the allegations of imminent danger must
still be plausible. Id. at 1055.
Court has reviewed Plaintiff’s complaint and finds that
Plaintiff does not meet the imminent danger exception.
Andrews, 493 F.3d at 1053. Plaintiff brings this
action naming himself and thirty three other
“co-joined” plaintiffs and thirty one defendants.
Plaintiff alleges in the complaint that he is being denied
legal counsel in his actions against employees of the
California Department of Corrections and Rehabilitation
(“CDCR”). Plaintiff contends that federal judges
are being bribed by CDCR employees to dismiss defendants from
actions that he has filed.
Plaintiff complains that his rights under the First Amendment
are violated due to his reports of CDCR misconduct to news
agencies being fraudulently concealed because prison
officials are reviewing his outgoing mail. Plaintiff also
makes vague accusations regarding his family members being
contacted by prison officials who handle confidential
informants to “contain the information of legal matters
being filed against law enforcement associated
persons.” (ECF No. 1 at 5.) Plaintiff wants a stay
until he is allowed to file his cases with the assistance of
an attorney and send and receive mail without governmental
complaint contains no allegations to demonstrate that he is
any imminent danger of serious physical injury. Therefore,
Plaintiff has not satisfied the exception from the three
strikes bar under 28 U.S.C. § 1915(g), and must pay the
$400.00 filing fee if he wishes to litigate this claim.
Accordingly, Plaintiff is ineligible to proceed in forma
pauperis in this action.
on the foregoing, it is HEREBY RECOMMENDED that:
1. Plaintiff’s application to proceed in forma pauperis
be DENIED; and
2. This action be dismissed without prejudice for Plaintiff
to refile with payment of the filing fee.
findings and recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within
thirty (30) days after being served with
these findings and recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” Plaintiff is advised
that failure to file objections within the specified time may
result in the waiver of ...