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Arzaga v. Santiago

United States District Court, E.D. California

July 9, 2019

DANIEL ARZAGA, Plaintiff,
v.
E. SANTIAGO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel, and is presently housed at Kern Valley State Prison (“KVSP”) in Delano, California. Defendants filed a motion to revoke plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g). As discussed below, the undersigned finds that plaintiff has sustained three strikes under § 1915(g). Because plaintiff has not demonstrated that he faced imminent danger of serious physical injury at the time he filed this action, the undersigned recommends that defendants' motion be granted, plaintiff's in forma pauperis status be revoked, and plaintiff be required to pay the filing fee.

         II. Background

         While housed at KVSP, plaintiff signed his original complaint on December 13, 2017, and alleged that on December 24, 2014, while housed at the California Health Care Facility in Stockton, defendants Santiago and Haluik, psychiatric technicians, and G. Donna, R.N., sexually assaulted plaintiff, and defendants Victoriano, LVN, and Correctional Officer Pak failed to protect plaintiff from the assaults. (ECF No. 1.) His complaint was filed on February 6, 2018. On January 24, 2019, plaintiff filed an amended complaint raising claims based on the 2014 assault. The court found that the amended complaint stated a potentially cognizable Eighth Amendment claim for relief against defendants E. Santiago, G. Donna, Haluik, A. Victoriano, and S. Pak. (ECF No. 18.)

         On May 15, 2019, defendants filed the motion to revoke plaintiff's in forma pauperis status. (ECF No. 23.) Plaintiff filed an opposition, and defendants filed a reply. (ECF Nos. 27, 28.)

         III. Motion to Revoke In Forma Pauperis Status

         A. In Forma Pauperis Statute

         The 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).

         This “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. 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) (prisoner may also be required to demonstrate imminent danger at the time the notice of appeal is filed); Andrews v. Cervantes, 493 F.3d at 1055.

         B. Th ...


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