United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND
REQUIRING PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH
THIS ACTION (Doc. Nos. 2, 7)
Billy Driver, a state prisoner, proceeds pro se in this civil
rights action filed on February 13, 2017. (Doc. No. 1.)
February 22, 2017, the assigned magistrate judge issued
findings and recommendations recommending that
plaintiff's application to proceed in forma
pauperis (“IFP”) be denied and that he be
required to pay the $400.00 filing fee in full to proceed
with this action. (Doc. No. 7.) In that order, the magistrate
judge found that plaintiff was ineligible for IFP status
because he had accrued three prior strikes under 28 U.S.C.
§ 1915(g) and did not qualify for the “imminent
danger” exception outlined in § 1915(g).
(Id.) The findings and recommendations were served
on plaintiff and contained notice that any objections thereto
were to be filed within fourteen (14) days after service.
(Id. at 3.) Plaintiff filed objections on March 9,
2017. (Doc. No. 8.)
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(c), this court has conducted a de novo review
of the case, including plaintiff's objections, and has
concluded that the magistrate judge's findings and
recommendations are supported by the record and proper
argues in his objections that the magistrate judge erred in
finding him ineligible for the “imminent danger”
exception of § 1915(g). In particular, he contends that
if the court dismisses his claims, he will continue to be
pepper sprayed, beaten, unlawfully detained, and forcibly
medicated. (Doc. No. 8 at 2.) However, in reviewing
plaintiff's complaint and pending objections to the
findings and recommendations, the court finds plaintiff has
not presented plausible, non-conclusory allegations of fact
indicating he faced an imminent danger of serious physical
harm at the time he filed his complaint. See Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007)
(availability of imminent danger exception turns on the
conditions the prisoner faced at the time the complaint was
filed); Martin v. Shelton, 319 F.3d 1048, 1050 (8th
Cir. 2003) (explaining that to qualify for the imminent
danger exception under 28 U.S.C. § 1915(g), an inmate
must provide “specific fact allegations”
supporting an ongoing serious physical injury or the
likelihood of imminent serious physical injury).
contentions regarding being pepper sprayed and beaten at some
future time are insufficient, by themselves, to demonstrate
imminent danger under 28 U.S.C. § 1915(g). See
Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir.
2001) (finding that the imminent danger exception did not
apply when plaintiff alleged that he had previously been
pepper sprayed); Meador v. Alvidrez, No.
1:09-cv-01058-LJO-GSA-PC, 2010 WL 1948565, at *2 (E.D. Cal.
May 11, 2010) (“The mere possibility that plaintiff
could be subject to the prison's practice of utilizing
pepper spray does not establish that plaintiff was under
threat of real and proximate danger at the time the complaint
plaintiff's vague allegations regarding the involuntary
administration of medication do not suffice to allege
imminent danger of serious physical harm. In his complaint,
plaintiff alleges that he has been subject to a forced
medication order since September 2016. (Doc. No. 1 at 4, 14.)
However, plaintiff does not allege that he was subjected to
this order without due-process, or that the medications
administered have resulted in him suffering any harm or
dangerous side effects. See Lewis v. Vail, No.
C10-0267-RSL, 2010 WL 1417719, at *2 (W.D. Wash. Feb. 23,
2010) (finding the imminent danger exception inapplicable
because plaintiff “does not allege that defendants have
decided to medicate him involuntarily, that such decision is
pending, or that such a decision would or could be made
without affording him due-process protections”);
cf. Bradford v. Marchak, 667 Fed.Appx. 616, 617 (9th
Cir. 2016)(“[Plaintiff] plausibly alleged
‘imminent danger of serious physical injury' given
his allegations of chest pain, dizziness, blurred vision and
headaches from ongoing involuntary psychotropic
plaintiffs allegations of unlawful detainment are “too
attenuated from any form of imminent danger” to trigger
the § 1915(g) exception. McClellan v. Kern Cty.
Sheriff's Office, No. 1:10-cv-0386-LJO-MJS, 2015 WL
5732077, at *2 (E.D. Cal. Sept. 28, 2015).
findings and recommendations (Doc. No. 7) issued on February
8, 2017, are adopted in full;
accordance with 28 U.S.C. § 1915(g), plaintiffs
application to proceed in forma pauperis (Doc. No.
2) is denied;
Within forty-five (45) days following service of this order,
plaintiff shall pay the $400.00 filing fee in full to proceed
with this action. If plaintiff fails to pay the filing fee
within the specified time, this action will be dismissed; and
matter is referred back to the assigned magistrate for
proceedings consistent with this order.