United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1). For the reasons set
forth below, this court finds plaintiff fails to meet the
standards to proceed in forma pauperis and recommends that
plaintiff be required to pay the filing fee if he wishes to
prosecute this action.
FORMA PAUPERIS STATUTE
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court 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).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
If a prisoner has “three strikes” under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception,
the complaint of a “three-strikes” prisoner must
plausibly allege that the prisoner was faced with imminent
danger of serious physical injury at the time his complaint
was filed. See Williams v. Paramo, 775 F.3d 1182,
1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
PLAINTIFF ACCRUED THREE STRIKES?
review of the actions filed by plaintiff in this court
reveals that plaintiff is subject to 28 U.S.C. §1915(g)
and is precluded from proceeding in forma pauperis unless
plaintiff was, at the time the complaint was filed, under
imminent danger of serious physical injury. Judges in this
court, including the undersigned magistrate judge, have
previously found that plaintiff has accrued three strikes.
The court takes judicial notice of those cases, and of
plaintiff's prior filings described therein. Those cases
include: Langston v. Williams, No. 2:16-cv-2365 JAM
DMC (June 18, 2019 Findings and Recommendations);
Langston v. Blackford, No. 2:16-cv-2366 WBS DB (May
26, 2017 Order); Langston v. Frantzen, No.
2:16-cv-2364 GEB EFB (Apr. 21, 2017 Order); and Langston
v. Sharma, 2:15-cv-1437 GEB KJN (Dec. 14, 2016 Order).
The strikes described in those cases all occurred prior to
the filing of the present action on June 25, 2019.
PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL
plaintiff has accrued three strikes, this court finds that
plaintiff is precluded from proceeding in forma pauperis in
this action unless he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). 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. See Andrews v.
Cervantes, 493 F.3d at 1053. “[A]ssertions of
imminent danger of less obviously injurious practices may be
rejected as overly speculative or fanciful.”
Id. at 1057 n.11. Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical. To meet his burden under §
1915(g), an inmate 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). “Vague and utterly
conclusory assertions” of harm are insufficient.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998). That is, 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). Further, the purpose of the
imminent danger exception is to allow prisoners to proceed
with cases in order to resolve the issues creating the
imminent danger. See Young v. Curliss, No.
1:12-cv-1871 JLT (PC), 2013 WL 56987, at *2 (E.D. Cal. Jan.
3, 2013). Therefore, an assertion of imminent danger must be
tied to the allegations of his complaint.
court has reviewed plaintiff's complaint to determine
whether his allegations demonstrate an imminent danger of
“serious physical injury.” Plaintiff appears to
be challenging a district attorney's decision to
re-charge plaintiff's prior misdemeanor conviction as a
felony. Plaintiff states that he is in imminent danger of
false imprisonment. False imprisonment is not the sort of
serious physical injury contemplated by the in forma pauperis
statute. See Smith v. Baldwin, No. 18-cv-1503-NJR, .
2018 WL 3993629, at *2 (S.D. Ill. Aug. 21, 2018);
Berryhill v. Oklahoma, No. CIV-13-1370-W, 2014 WL
679111, at *2 (W.D. Okla. Jan. 30, 2014); Weidow v.
Anderson, No. 3:07cv510/LAC/MD, 2008 WL 168888, at *2
(N.D. Fla. Jan. 16, 2008). Because plaintiff fails to
demonstrate that he meets the imminent danger exception to
the three-strikes bar, this court will recommend plaintiff be
required to pay the $400 filing fee if he wishes to proceed
with this case.
the Clerk of the Court is HEREBY ORDERED to randomly assign a