United States District Court, E.D. California
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)
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).
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).
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.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
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.”
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
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.”
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.”
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).
“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.
making the imminent danger determination the Court must
liberally construe [Plaintiff's] allegations.
Andrews, 493 F.3d at 1055 (9th Cir. 2007).
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).
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 ...