United States District Court, E.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING CASE WITHOUT PREJUDICE ORDER TO CLOSE CASE (ECF
Shepard (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed the
complaint commencing this action on May 3,
2017. (ECF No. 1). Plaintiff then filed
application to proceed in forma pauperis on June 5,
2017, which is presently pending before the Court. (ECF No.
28, United States Code, Section 1915 governs proceedings
in forma pauperis. Section 1915, 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. §
begin, it does not appear that Plaintiff is in imminent
danger. 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.” Andrews v. Cervantes, 493 F.3d 1047,
1053 (9th Cir. 2007). “Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical.” Blackman v.
Mjening, No. 116CV01421LJOGSAPC, 2016 WL 5815905, at *1
(E.D. Cal. Oct. 4, 2016). To meet his burden under §
1915(g), Plaintiff 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). “[V]ague and utterly
conclusory assertions” of harm are insufficient.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998). 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).
on the facts alleged in the Complaint (ECF No. 1), it does
not appear that Plaintiff is in imminent danger. Plaintiff
alleges that the defendants retaliated against him for filing
administrative complaints and/or lawsuits. There are no
allegations that would suggest Plaintiff is at risk of being
seriously physically injured. Accordingly, the Court finds
that Plaintiff is not in imminent danger.
the Court must determine whether Plaintiff “has, on 3
or more prior occasions… 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….” 28
U.S.C. § 1915(g). The Court takes judicial notice of the
1. Shepard v. Connolly, No. 2:11-cv-01262 (C.D.Cal.
Feb. 17, 2011) (order finding plaintiff's claim as
frivolous, malicious, and failing to state a claim);
2. Shepard v. Johnson, No. 1:11-cv-01726 (E.D.Cal.
Aug. 7, 2012) (order dismissing case with prejudice for
failure to state a claim upon which relief may be granted);
3. Shepard v. Munoz, No. 1:12-cv-01470 (E.D.Cal.
Oct. 8, 2013) (order dismissing case with prejudice for
failure to state a claim upon which relief may be granted).
based on the foregoing, the Court finds that, before filing
this case, Plaintiff had filed three or more cases that were
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief could be
CONCLUSION AND ORDER
Court finds that under 28 U.S.C. § 1915(g) Plaintiff may
not proceed in forma pauperis in this action.
on the foregoing, it is HEREBY ORDERED that:
1. Plaintiffs motion to proceed in forma pauperis
(ECF No. 5) is DENIED pursuant to 28 ...