United States District Court, E.D. California
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.
Carlos Hendon is appearing pro se in this civil rights action
pursuant to 42 U.S.C. § 1983.
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
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).
has suffered three or more strikes under section 1915(g). The
Court takes judicial notice of the following
cases: 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).
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.
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