United States District Court, E.D. California
KENDALL J. NEWMAN.
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). Plaintiff consented to proceed
before the undersigned for all purposes. See 28
U.S.C. § 636(c). On August 31, 2017, the undersigned
found that plaintiff sustained three strikes under 28 U.S.C.
§ 1915(g). On September 13, 2017, plaintiff filed an
opposition to the order, alleging he faced imminent danger of
serious physical injury. Upon reconsideration, the court
finds plaintiff has suffered three strikes and failed to
demonstrate he is entitled to an exception to the §
1916(g) bar. Therefore, as discussed below, plaintiff must
pay the court's filing fee in order to proceed with this
Under 28 U.S.C. § 1915(g)
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Review of court records reveals that on
at least three occasions lawsuits filed by the plaintiff have
been dismissed on screening as barred by the statute of
1. Williams v. Aparqicio, No. 2:14-cv-08640 (C.D.
Cal. Feb. 5, 2015). ECF No. 15-3 at 13-14; see also
ECF No. 15-3 at 7-12 (Report and Recommendation).
2. Williams v. Kerkfoot, No. 2:14-cv-07583 (C.D.
Cal. May 15, 2015). ECF No. 15-3 at 35-36; see also
ECF No. 15-3 at 23-34 (Report and Recommendation).
3. Williams v. Young, No. 2:14-cv-8037 (C.D. Cal.
May 19, 2015). ECF No. 15-3 at 46-52 (Memorandum and Order).
April 7, 2017, another magistrate judge explained to
plaintiff that such dismissals count as strikes under 28
U.S.C. § 1915(g) because this court is bound by
Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015).
Williams v. Logan, Case No. 2:15-cv-2084 MCE AC P
(E.D. Cal.) (ECF No. 18 at 2) (majority in Belanus
affirmed the decision that the action was time-barred counted
as a strike under 1915(g)). Moreover, on August 17, 2017, the
Ninth Circuit found that the district court in Williams
v. Degeorges, 2:16-cv-0025 TLN CKD (E.D. Cal.), properly
denied plaintiff in forma pauperis status because plaintiff
had sustained three § 1915(g) strikes. Williams v.
Degeorges, 2017 WL 3530901 (9th Cir. 2017).
is therefore precluded from proceeding in forma pauperis in
this action unless plaintiff is “under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g).
In Andrews, the Ninth Circuit adopted the view that
“requiring a prisoner to ‘allege [ ] an ongoing
danger'-- the standard adopted by the Eighth Circuit --
is the most sensible way to interpret the imminency
requirement.” Andrews v. Cervantes, 493 F.3d
1047, 1056 (9th Cir. 2007), citing Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 2003).
Andrews held that the imminent danger faced by the
prisoner need not be limited to the time frame of the filing
of the complaint, but may be satisfied by alleging a danger
that is ongoing. See Andrews 493 F.3d at 1053.
August 31, 2017, the undersigned found that plaintiff failed
to allege facts demonstrating he was at risk of imminent
danger, and ordered plaintiff to pay the court's filing
fee before this action can proceed. (ECF No. 8.) On September
13, 2017, plaintiff filed an opposition, claiming that he had
alleged facts demonstrating he is at risk of imminent harm in
claims three and four of his complaint, and would not pay the
filing fee in full as directed. Plaintiff provided no
additional factual allegations in his one page opposition.
Claim III of his complaint, plaintiff alleges the following:
On March 26, 2017, defendant Escalante told plaintiff:
“It would be smart to withdraw that bullshit 602 appeal
on me and if you don't you may find yourself in a casket
on [your] [way] home.” (ECF No. 1 at 30, 33.) Plaintiff
laughed in fear, and responded, “Is that a
threat?” and “It's too late the 602 is at
third level already and you shouldn't have assaulted me
twice.” (Id.) Escalante responded, “the
clock is ticking, ” and walked away. (Id.)
time Escalante made the verbal threats,  plaintiff was
housed at California Medical Facility (“CMF”)
where defendant Escalante was employed as a correctional
officer. However, at the time plaintiff filed the instant
complaint on May 22, 2017, under the mailbox rule,
plaintiff had been transferred to R.J. Donovan
(“RJD”) in San Diego. Therefore, defendant
Escalante could not have posed an imminent threat to
plaintiff on May 22, 2017, because Escalante was working at
CMF, and plaintiff was housed at RJD. “[T]he
availability of the exception turns on the conditions a
prisoner faced at the time the complaint was filed, not at
some earlier or later time.” Andrews, 493 F.3d
at 1053. Thus, plaintiff's allegations as to defendant
Escalante do not warrant an exception to the § 1915(g)
fourth claim (labeled “Claim IIII [sic]”),
plaintiff alleges that on April 28, 2017, he was taken to a
classification hearing at CMF and requested a transfer to
California Mens Colony with no alternatives due to his
alleged enemy concerns at RJD. (ECF No. 1 at 35, citing
classification committee chrono, ECF No. 1 at 38.) Plaintiff
claims he was transferred to RJD on May 5, 2017, in
retaliation for the instant lawsuit. (ECF No. 1 at 35-36.)
Plaintiff refused to go, but concedes that defendant Captain
Brown told plaintiff that Captain Brown checked
plaintiff's file and did not see any enemies. (ECF No. 1
at 36.) However, plaintiff replied that “you guys
deleted it from my ...