United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Plaintiff has consented to the jurisdiction of the
undersigned magistrate judge for all purposes pursuant to 28
U.S.C. § 636(c) and Local Rule 305(a). ECF No. 7.
Prison Litigation Reform Act of 1995 (PLRA) permits any court
of the United States to authorize the commencement and
prosecution of any suit without prepayment of fees by a
person who submits an affidavit indicating that the person is
unable to pay such fees; however,
[i]n no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding 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).
review of the actions filed by plaintiff reveals that
plaintiff is subject to 28 U.S.C. § 1915(g) and is
precluded from proceeding in forma pauperis unless plaintiff
was, at the time the complaint was filed, under imminent
danger of serious physical injury. The court has found
evidence on the court record of four § 1915(g)
“strikes” against plaintiff, which were all
entered before this action was brought by plaintiff on August
19, 2016. The court takes judicial
noticeof the following lawsuits previously filed
(1) Langston v. Finn, 2:10-cv-02196-EFB (E.D. Cal)
(dismissed on March 2, 2011, for failure to state a claim);
(2) Langston v. Enkoji, 2:10-cv-02715-GGH (E.D.
Cal.) (dismissed on April 26, 2011, for failure to state a
(3) Langston v. Finn, 2:08-cv-02475-EFS (E.D. Cal.)
(dismissed on May 1, 2013, for failure to state a claim); and
(4) Langston v. Hartley, 2:10-cv-03191-KJN (E.D.
Cal.) (dismissed on May 24, 2013, for failure to state a
this court finds that plaintiff is precluded from proceeding
in forma pauperis in this action unless he is “under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). The availability of the imminent danger
exception turns on the conditions a prisoner faced at the
time the complaint was filed, not at some earlier or later
time. See Andrews v. Cervantes, 493 F.3d 1047, 1053
(9th Cir. 2007). “[A]ssertions of imminent danger of
less obviously injurious practices may be rejected as overly
speculative or fanciful.” Id. at 1057 n.11.
Imminent danger of serious physical injury must be a real,
present threat, not merely speculative or hypothetical. To
meet his burden under § 1915(g), an inmate must provide
“specific fact allegations of ongoing serious physical
injury, or a pattern of misconduct evidencing the likelihood
of imminent serious physical injury.” Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
“Vague and utterly conclusory assertions” of harm
are insufficient. White v. Colorado, 157 F.3d 1226,
1231-32 (10th Cir. 1998). That is, the “imminent
danger” exception is available “for genuine
emergencies, ” where “time is pressing” and
“a threat . . . is real and proximate.” Lewis
v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
court has reviewed plaintiffs complaint for this action and
finds that plaintiff does not meet the imminent danger
exception. See Andrews, 493 F.3d at 1053. In the
complaint, plaintiff alleges that on December 16, 2014, he
informed “mental health and medical staff at California
State Prison-Sacramento that he was a “threat” to
himself and others, “suicidal and homicidal, ”
and “needed medical attention.” ECF No. 1 at 3.
Plaintiff seeks to be released from prison in order to
receive medical treatment and seeks “compensation for
the damages for a risk of suicide.” Id
Plaintiff filed a health care appeal, id. at 4-7,
which indicates that plaintiff “received
treatment” on December 23, 2014 through January 1, 2015
“for the suicidal crisis, ” id at 6. In
addition, plaintiff requested “monetary and punitive
damages for the alleged act(s)” on December 16, 2014.
Id. at 7. The complaint is devoid of any showing
that plaintiff was under imminent danger of serious physical
injury at the time he filed the complaint. Therefore,
plaintiff may not proceed in forma pauperis in this action
and must submit the appropriate filing fee in order to
proceed with this action.
IT IS HEREBY ORDERED that:
Plaintiff s request to proceed in forma pauperis ...