United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
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
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.)
Motion to Revoke In Forma Pauperis Status
In 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. 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.