United States District Court, E.D. California
KEENAN W. WILKINS, Plaintiff,
DAVID BAUGHMAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. On January
31, 2018, the undersigned issued an order granting
plaintiff's request to proceed in forma pauperis and
screening the complaint. (ECF No. 6.) The undersigned found
that the complaint stated potentially colorable retaliation
and Eighth Amendment claims against defendants Baughman,
Arya, Sahota, Riley, Ramirez, McCarvel and Peterson.
(Id.) The undersigned dismissed with leave to amend
plaintiff's Equal Protection and conspiracy claims.
of filing an amended complaint, on February 12, 2018,
plaintiff filed the forms necessary for service of defendants
as to those claims found to be potentially colorable in the
January 31, 2018 order. (ECF No. 9.)
reasons stated herein, the undersigned recommends that
plaintiff's in forma pauperis status be revoked and
plaintiff be ordered to pay the filing fee.
28 U.S.C. § 1915 generally permits any court in the
United States 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).
February 1, 2018, in Keenan v. Wilkins, 2: 16-cv-347
KJM KJN P, the Honorable Kimberly J. Mueller granted
defendants' motion to revoke plaintiff's in forma
pauperis status pursuant to Title 28 U.S.C. §
1915(g). Judge Mueller found that plaintiff had
three prior strikes pursuant to Title 28 U.S.C. §
1915(g). For the reasons stated by Judge Mueller in her
February 1, 2018 order in 2:16-cv-347, the undersigned finds
that plaintiff has three prior strikes in the instant action.
is an exception to § 1915(g)'s three-strikes bar if
the plaintiff “makes a plausible allegation that [he]
faced ‘imminent danger of serious physical injury'
at the time of filing.” Andrews v. Cervantes,
493 F.3d 1047, 1055 (9th Cir. 2007); see also Williams v.
Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (holding
that a prisoner may also be required to demonstrate imminent
danger at the time the notice of appeal is filed). 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, 493 F.3d
reasons stated herein, the undersigned finds that plaintiff
does not meet the imminent danger exception. Plaintiff filed
the complaint on July 5, 2017. Plaintiff alleged that in in
May 2016, defendants at California State Prison-Sacramento
(“CSP-Sac”) removed a medical hold before he
could receive back surgery in violation of his Eighth
Amendment right to adequate medical care. Plaintiff alleged
that on June 24, 2016, he was transferred to R. J. Donovan
Correctional Facility (“RJDCF”). Plaintiff
alleges that following his transfer to RJDCF, he did not
receive his legal property. Plaintiff alleged that at the
time he filed the complaint, he had not received all of his
legal property from CSP-Sac.
claim that he did not have all of his legal property at the
time he filed the complaint does not involve a claim alleging
imminent danger of serious physical injury. Plaintiffs claims
alleging that he did not receive back surgery, and was
wrongly transferred to RJDCF in June 2016, does not
demonstrate the existence of an imminent danger of serious
physical injury when he filed the complaint approximately one
year later in July 2017. For these reasons, plaintiff does
not meet the imminent danger exception to 28 U.S.C. §
IT IS HEREBY RECOMMENDED that plaintiffs in forma pauperis
status be revoked, and plaintiff be ordered to pay the filing
fee of $400 for this action.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections ...