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Logan v. Tomer

United States District Court, E.D. California

September 5, 2017

JAMES DAVID LOGAN, II, Plaintiff,
v.
DR. TOMER and DR. GLADSTEIN, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND, DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND REQUIRING PLAINTIFF TO PAY THE $400 FILING FEE WITHIN THIRTY DAYS (ECF NOS. 2 & 10)

         I. BACKGROUND

         James David Logan, II (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 19, 2017, Plaintiff consented to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 8), and no other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a district judge is required. Local Rule Appendix A(k)(3).

         On June 29, 2017, Plaintiff filed an application to proceed in forma pauperis. (ECF No. 2). Because it appeared that Plaintiff had “three strikes” and was not in imminent danger of serious physical injury, the Court ordered Plaintiff to show cause why the Court should not deny his application to proceed in forma pauperis and require him to pay the $400 filing fee. (ECF No. 9).

         Apparently in response to the order to show cause, Plaintiff filed a motion for leave to amend (ECF No. 10), as well as letters to the Court and exhibits (ECF Nos. 11 & 12). Plaintiff's motion for leave to amend and application to proceed in forma pauperis are now before the Court.

         II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

         28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) 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.”

         III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

         Plaintiff initiated this action on June 29, 2017. (ECF No. 1). Prior to this date, more than one Court has found that Plaintiff has more than three “strikes.”

         The Court takes judicial notice of Logan v. Horwitz, E.D. CA, Case No. 2:15-cv-00121, ECF No. 29. Magistrate Judge Claire examined Plaintiff's prior filings, and concluded that Plaintiff had eight cases that constituted “strikes” under the “three-strike” rule in 28 U.S.C. § 1915(g). (Id. at 2-3). Upon careful review of this decision, as well as the cases that Judge Claire found to constitute strikes, the Court finds Judge Claire's analysis to be properly supported by existing law. Thus, the Court agrees with Judge Claire's decision and finds that Plaintiff has at least eight cases that constitute “strikes.”[1]

         Therefore, Plaintiff is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under imminent danger of serious physical injury. 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 imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). See also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (“[C]onclusory assertions” are “insufficient to invoke the exception to § 1915(g)….”). 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).

         Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the ‘imminent danger' exception of § 1915(g). In deciding whether such a nexus exists, we will consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury. The three-strikes litigant must meet both requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, No. 1:13-CV-1883 AWI MJS, 2015 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009)).

         In making the imminent danger determination the Court must liberally construe [Plaintiff's] allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007).

         As the Court found previously, “[b]ased on the facts alleged in the complaint (ECF No. 1), it does not appear that Plaintiff is in imminent danger of serious physical injury. The complaint is difficult to understand at times, but it appears that Plaintiff is alleging that, in retaliation for Plaintiff filing 602 appeals, Defendants denied Plaintiff medical treatment that he need[ed]. There is no allegation that Plaintiff is in imminent danger of serious physical injury, and Plaintiff does not appear to be in imminent danger of serious physical injury.” (ECF No. 9, p. 2).

         As an initial matter, the Court notes that in his requested relief, Plaintiff only asks for damages. (ECF No. 1, p. 6). He does not request that he be ...


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