United States District Court, E.D. California
LAKEITH L. MCCOY, Plaintiff,
A. HOLGUIN, et al., Defendants.
ORDER GRANTING REQUEST FOR JUDICIAL NOTICE; AND
FINDINGS AND RECOMMENDATIONS TO 1. REVOKE PLAINTIFF'S IN
FORMA PAUPERIS STATUS, AND 2. DIRECT PLAINTIFF TO PAY FILING
FEE IN FULL (ECF Nos. 44, 45) FOURTEEN-DAY DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. This matter proceeds on Plaintiff's Second Amended
Complaint asserting excessive force and failure to protect
claims against 19 Defendants following a March 2015 assault.
On July 14, 2015, Plaintiff was granted leave to proceed in
forma pauperis. (ECF No. 9.)
pending is Defendants' January 9, 2017, motion to revoke
in forma pauperis status. (ECF No. 44.) Plaintiff opposes the
motion. For the reasons set forth below, the undersigned will
recommend that Plaintiff's in forma pauperis status be
revoked and he be directed to pay the filing fee in full.
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.”
initiated this action on May 20, 2015. Before that date,
Plaintiff's complaints in the following cases were
dismissed for failure to state a claim and judgment was
entered accordingly: McCoy v. County of Riverside,
2:13-cv-8674-RGK-DFM (C.D. Cal.) (dismissed on July 31, 2014,
for failure to state a claim); McCoy v. Curiel,
2:14-cv-0517-RGK-DFM (C.D. Cal.) (dismissed on January 9,
2015, for failure to state a claim); McCoy v. County of
Los Angeles, 2:14-cv-7262 UA-DFM (C.D. Cal.) (dismissed
on September 25, 2014, for failure to state a claim); and
McCoy v. Cacciola, 1:13-cv-0995-SKO (E.D. Cal.)
(dismissed on December 18, 2014, for failure to state a
claim). Since Plaintiff does not argue that these cases do
not constitute a strike, the undersigned finds that he is a
“three-striker” within the meaning of Section
1915(g), and the only question remaining is whether Plaintiff
was under imminent danger of serious physical injury at the
time he filed this action.
imminent danger 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 Ninth Circuit interprets
“imminent danger” to mean “ongoing danger,
” meaning the prisoner must allege that prison
officials have continued with a practice that has injured him
or others similarly situated in the past. Id. at
prisoner seeking to invoke the imminent danger exception in
§ 1915(g) must make specific, credible allegations of
imminent danger of serious physical harm. McNeil
v. U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006)
(citing Kinnell v. Graves, 265 F.3d 1125, 1127-28
(10th Cir. 2001), and White v. Colorado, 157 F.3d
1226, 1232 (10th Cir. 1998)). Vague, speculative, and
non-specific allegations are insufficient. See Pauline v.
Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009)
(plaintiff's vague and conclusory allegations of possible
future harm to himself or others are insufficient to trigger
the “imminent danger of serious physical injury”
exception to dismissal under § 1915(g)); Cooper v.
Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006)
(plaintiff's allegations that he will commit suicide, or
that he has already attempted suicide and will do so again,
are insufficient to show imminent danger); Luedtke v.
Bertrand, 32 F.Supp.2d 1074, 1077 (E.D. Wis. 1999)
(“[p]laintiff's vague allegation of a conspiracy
among the defendants to beat, assault, injure, harass and
retaliate against him are not enough. These allegations are
insufficient and lack the specificity necessary to show an
imminent threat of serious physical injury.”).
sets forth three grounds in opposition to Defendants'
motion: Defendants have not met their burden to show that the
IFP status should be revoked, the “imminent
danger” exception is applicable to the facts of this
case, and revocation of the IFP cannot apply to Plaintiff.
Plaintiff does not elaborate on these grounds other than to
argue that the imminent danger exception applies to him
because he continues to suffer from injuries from the
assault. He also asserts that denying him this exception on
the ground that the assault occurred in the past would be
“a cruel joke on prisoners.” See Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
Court has reviewed Plaintiff's complaint and finds that
Plaintiff does not meet the imminent danger exception. This
action is directed at 19 Defendants who are alleged to have
used excessive force and/or failed to intervene during an
assault that occurred in March 2015, nearly two and one-half
months before he initiated this case. Plaintiff's
pleadings allege neither an ongoing harm nor an imminent
threat of serious physical injury. His claim that he
continues to suffer from his past injuries is insufficient to
satisfy the requirements of this exception.
IT IS HEREBY ORDERED that Defendants' motion for judicial
notice (ECF No. 45) is GRANTED; and IT IS HEREBY RECOMMENDED
Defendants' motion to revoke Plaintiff's in forma
pauperis status (ECF No. 44) be GRANTED;
Plaintiff's in forma pauperis status be REVOKED; and
Plaintiff be directed to pay the $400 filing fee in this
action within fourteen days from the adoption of these
findings and recommendations.
findings and recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with the 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