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Hendon v. Davey

United States District Court, E.D. California

May 15, 2017

CARLOS HENDON, Plaintiff,
v.
DAVEY, Defendant.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING PLAINTIFF TO PAY FILING FEE WITHIN THIRTY DAYS FOLLOWING THE ORDER RESOLVING THE INSTANT RECOMMENDATION [ECF No. 2]

         Plaintiff Carlos Hendon is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

         I.

         INTRODUCTION

         On May 12, 2017, Plaintiff Carlos Hendon, 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, 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).

         II.

         LEGAL STANDARD

         The 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).

         III.

         DISCUSSION

         Plaintiff has suffered three or more strikes under section 1915(g). The Court takes judicial notice of the following cases:[1] Hendon v. Witcher, et.al., Case No. 1:05-cv-01246-AWI-DLB (PC((E.D. Cal. Aug. 6, 2007) (civil rights action dismissed for failure to state a claim upon which relief may be granted); (2) Hendon v. Rogel, et.al., Case No. 2:05-cv-01063-DFL-PAN (JFM) (PC) (E.D. Cal. Aug. 28, 2006) (same); (3) Hendon v. White, et al., Case No. 2:07-cv-01825-GEB-CMK (PC) (E.D. Cal. Feb. 5, 2008) (same).

         The issue now becomes 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 May 12, 2017. 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 is merely procedural rather than a merits-based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055.

         The Court has reviewed Plaintiff's complaint and finds that Plaintiff does not meet the imminent danger exception. Andrews, 493 F.3d at 1053. At the time Plaintiff filed the instant complaint, Plaintiff was housed at California State Prison-Sacramento where he is presently housed. Plaintiff contends from May to October of 2015, he was incarcerated at California State Prison, Corcoran. During that time, he was housed in the Security Housing Unit (SHU), and was denied shower shoes, subjected to constant lighting, subjected to constant noise, forced to remain in a cell with nauseas odors, and had limited personal belongings. Plaintiff requests compensatory and punitive damages as relief. The complaint does not demonstrate that Plaintiff is presently in imminent danger of serious physical injury. Accordingly, Plaintiff is ineligible to proceed in forma pauperis in this action.

         IV.

         RECO ...


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