United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
BE DENIED (ECF NO. 2) THIRTY (30) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Lamont Shepard (“Plaintiff”) is a state prisoner
proceeding pro se in this civil rights action pursuant to 42
U.S.C. § 1983. Currently before the Court is
Plaintiff's motion for leave to proceed in forma
pauperis, filed on June 2, 2017. (ECF No. 2.)
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.” Plaintiff has
been informed in a prior case that he is subject to §
Court has reviewed Plaintiff's complaint and finds that
his allegations do not satisfy the imminent danger exception
to section 1915(g). Andrews v. Cervantes, 493 F.3d
1047, 1053-55 (9th Cir. 2007). Plaintiff initiated this
action while at Calipatria State Prison in Calipatria,
California, where he currently is housed. However, the
allegations in the complaint concern events that occurred
while Plaintiff was housed at Corcoran State Prison in
Corcoran, California, in September 2010.
alleges that on September 1, 2010, Defendant Podsakoff asked
Plaintiff to submit to an unclothed body search during which
Plaintiff stripped naked, squatted, and coughed while
Defendant Podsakoff watched. Once Plaintiff finished,
Defendant Podsakoff stated, “Do it again 1 didn't
see.” Plaintiff stated, “Every time you search
me, you ask me to do it again this is the third time, and
sexual harassment.” Plaintiff asked Defendant Podsakoff
to get the sergeant, and Defendant Podsakoff refused.
Plaintiff informed the unit supervisor and later filed a
complaint against Defendant Podsakoff for sexual harassment.
Plaintiff further alleges that on September 23, 2010,
Defendant Weatherford informed Defendant Podsakoff of the
complaint. Plaintiff alleges that Defendant Podsakoff then
wrote a false report on Plaintiff for disrespecting staff,
dated September 29, 2010. Plaintiff argues that the later
date of the report is evidence of retaliation against
Plaintiff for filing a complaint against Defendant Podsakoff.
(ECF No. 1.)
complaint concerns past events at an institution where he was
no longer housed by the time he filed his complaint in this
action. Furthermore, Plaintiff's allegations of
harassment and a false report at his previous institution do
not show any risk of significant physical harm. Thus,
Plaintiff has not alleged any imminent danger of serious
physical injury at the time of filing and has not satisfied
the exception from the three strikes bar under 28 U.S.C.
§ 1915(g). Plaintiff must pay the $400.00 filing fee if
he wishes to litigate this action.
it is HEREBY RECOMMENDED that:
1. The motion to proceed in forma pauperis (ECF No. 2) be
DENIED, pursuant to 28 U.S.C. § 1915(g); and
2. Plaintiff be ORDERED to pay the $400 initial filing fee in
full to proceed with this action.
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
thirty (30) days after being served with
these Findings and Recommendations, Plaintiff may file
written objections with the court. The document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” Plaintiff is advised that
the failure to file objections within the specified time may
result in the waiver of the “right to challenge the
magistrate's factual findings” on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).
 The Court takes judicial notice of the
following United States District Court Cases: (1) Shepard
v. Connolly, Case No. 2:11-cv-01262-UA-MAN (C.D. Cal.)
(dismissed on February 17, 2011, for being frivolous,
malicious, or failing to state a claim); (2) Shepard v.
Johnson, Case No. 1:11-cv-01726-SKO PC (dismissed on
August 7, 2012, for failure to state a claim); (3)
Shepard v. Munoz, Case ...