United States District Court, E.D. California
DAVID W. WILSON, Plaintiff,
CALIFORNIA STATE PRISON CORCORAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO
PROCEED IN FORMA PAUPERIS (ECF NO. 2) ORDER DIRECTING CLERK
OF COURT TO ASSIGN DISTRICT JUDGE FOURTEEN-DAY OBJECTIONS
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se in this civil rights
action filed on March 28, 2018. (ECF No. 1.) Plaintiff has
not prepaid the filing fee as required by Local Rule 121(c).
Accompanying his complaint was a motion to proceed in forma
pauperis. (ECF No. 2.) For the reasons set forth below, the
motion should be denied.
Motion to Proceed In Forma Pauperis
is subject to 28 U.S.C. 1915(g), which 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.”
Actions Dismissed for Failure to State Claim
has brought four actions that were dismissed for failing to
state a claim. See Wilson v. Tilton, No.
2:06-cv-01031-LKK-PAN (E.D. Cal. Sept. 12, 2006); Wilson
v. Schwartz, No. 2:05-cv-01649-GEB-CMK (E.D. Cal. Oct.
31, 2006); Wilson v. Dovey, No.
2:06-cv-01032-FCD-EFB (E.D. Cal. March 8, 2007); Wilson
v. Veal, No. 2:06-cv-00067-FCD-KJM (E.D. Cal. June 4,
Plaintiff's actions noted above were dismissed before
March 28, 2018, when Plaintiff filed the present action.
Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is
precluded from proceeding in forma pauperis in this action
unless at the time the complaint was filed, he was under
imminent danger of serious physical injury.
Imminent Danger Exception
imminent danger exception applies if “the complaint
makes a plausible allegation that the prisoner faced
'imminent danger of serious physical injury' at the
time of filing.” Andrews v. Cervantes, 493
F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit interprets
“imminent danger” to mean “ongoing danger,
” meaning the prisoner must allege that prison
officials have continued with a practice that has injured him
or others similarly situated in the past. Id. at
prisoner seeking to invoke the imminent danger exception in
§ 1915(g) must make specific, credible allegations of
imminent danger of serious physical harm. McNeil v.
U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006) (citing
Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th Cir.
2001), and White v. Colorado, 157 F.3d 1226, 1232
(10th Cir. 1998)). Vague, speculative, and non-specific
allegations are insufficient. See Pauline v.
Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009)
(plaintiff's vague and conclusory allegations of possible
future harm to himself or others are insufficient to trigger
the “imminent danger of serious physical injury”
exception to dismissal under § 1915(g)); Cooper v.
Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006)
(plaintiff's allegations that he will commit suicide, or
that he has already attempted suicide and will do so again,
are insufficient to show imminent danger); Luedtke v.
Bertrand, 32 F.Supp.2d 1074, 1077 (E.D. Wis. 1999)
(“[p]laintiffs vague allegation of a conspiracy among
the defendants to beat, assault, injure, harass and retaliate
against him are not enough. These allegations are
insufficient and lack the specificity necessary to show an
imminent threat of serious physical injury.”).
Plaintiffs complaint fails to reflect that Plaintiff is at
imminent risk of suffering “serious physical
the complaint is largely incomprehensible and its allegations
difficult to decipher, it alleges the following multitude of
alleged constitutional violations: Plaintiff was transferred
in retaliation for engaging in a protected act, and the
transfer did not ensure compliance with his rights under the
Americans with Disabilities Act (“ADA”);
Defendants have deprived him of certain items, such as a fan
and special mattress, he considers medical necessities; he
has been seen by a nurse practitioner, while being denied
visits by a medical doctor; he seeks but has been denied
special transport accommodations, an air mattress with an
electric fan, a ban on further video doctor's visits, the
return of his toenail clippers, special accommodations on
searches conducted when he is out of his cell, a special
therapeutic diet, access to the library five days a week, a
requirement that all kitchen personnel who handle food wear
caps and aprons, and enactment of a long list of procedural
and physical changes to the prison. (ECF No. 1 at 20-24.)
Court can identify no allegations in the foregoing or
otherwise that indicate Plaintiff is exposed to imminent
physical danger from which he needs the Court's