United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
J. LEBECK, Defendant.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
has neither paid the filing fee nor sought to proceed in
forma pauperis. For the reasons set forth below, this court
finds plaintiff fails to meet the standards to proceed in
forma pauperis and must pay the filing fee if he wishes to
proceed with this action.
FORMA PAUPERIS STATUTE
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court to authorize the commencement and
prosecution of any suit without prepayment of fees by a
person who submits an affidavit indicating that the person is
unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding 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).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
If a prisoner has “three strikes” under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception,
the complaint of a “three-strikes” prisoner must
plausibly allege that the prisoner was faced with imminent
danger of serious physical injury at the time his complaint
was filed. See Williams v. Paramo, 775 F.3d 1182,
1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
PLAINTIFF ACCRUED THREE STRIKES?
to the date plaintiff initiated this action on June 7, 2017,
numerous judges in this court had found that plaintiff may
not proceed with a civil rights action in forma pauperis
because he has suffered at least three strikes. See,
e.g., Bontemps v. Lebeck, No. 2:17-cv-0881 CMK
(E.D. Cal. June 9, 2017); Bontemps v. Lawaya, No.
2:16-cv-2424 CKD P (E.D. Cal. Apr. 10, 2017); Bontemps v.
Hicks, No. 1:16-cv-1854-EPG (E.D. Cal. Jan. 23, 2017);
Bontemps v. Harper, No. 2:13-cv-0506-MCE-EFB, 2016
WL 1339577 (E.D. Cal. Apr. 5, 2016), report and reco.
adopted, 2016 WL 3135840 (E.D. Cal. June 2, 2016);
Bontemps v. Sotak, No. 2:09-cv-2115-MCE-EFB, 2015 WL
812360 (E.D. Cal. Feb. 25, 2015), report and reco.
adopted, 2015 WL 1469870 (E.D. Cal. Mar. 30, 2015).
Sotak, the court analyzed plaintiff's prior
dismissed cases. This court has carefully reviewed the
decision in Sotak and agrees with the analysis set
out in that case. For the reasons stated in Sotak,
the court finds plaintiff has suffered three strikes under
PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL
plaintiff has accrued three strikes, this court finds that
plaintiff is precluded from proceeding in forma pauperis in
this action unless he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). 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. See Andrews v.
Cervantes, 493 F.3d at 1053. “[A]ssertions of
imminent danger of less obviously injurious practices may be
rejected as overly speculative or fanciful.”
Id. at 1057 n.11. Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical. To meet his burden under §
1915(g), an inmate 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). “Vague and utterly
conclusory assertions” of harm are insufficient.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998). That is, 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).
court has reviewed plaintiff's complaint filed June 7,
2017. Plaintiff states one claim that defendant confiscated
plaintiff's canteen items as a form of retaliation.
Plaintiff does not allege that he is at risk of any sort of
physical injury. Therefore, plaintiff fails to meet the
imminent danger ...