United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a civil rights
action pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
has not filed an in forma pauperis affidavit or paid the
required filing fee of $350.00 plus the $50.00 administrative
See 28 U.S.C. §§ 1914(a), 1915(a). For the
reasons listed below, the undersigned shall recommend that
plaintiff be ordered to pay the filing fee prior to
proceeding any further with this action.
APPLICABLE LAW: 28 U.S.C. § 1915(g)
In 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).
alleges that defendants violated his rights under the
Fourteenth Amendment when they forced him to be on a special
renal diet knowing full well that plaintiff would refuse the
meals. (See ECF No. 1 at 4-5). He
contends that his refusal of the meals has led to
“mineral depletion” which has, in turn, put him
in imminent danger of serious physical harm. (See
ECF No. 1 at 3).
has not filed an application to proceed in forma pauperis,
nor has he paid the filing fee. Instead, plaintiff points out
that he is a three-strikes litigant under the Prison
Litigation Reform Act (“PLRA”) and alleges that
he is in imminent physical danger. As a three-strikes litigant,
a finding that plaintiff is in imminent danger of serious
physical harm would eliminate his obligation to pay the
filing fee. See generally 28 U.S.C. § 1915(g).
plaintiff is a three strikes litigant, requiring plaintiff to
file an in forma pauperis application with the court before
proceeding any further with this action would be an exercise
in futility. Instead, the more expedient course of action is
for the court to require plaintiff either to pay the filing
fee or to show that he was in imminent danger of serious
physical harm at the time he filed the instant action.
See generally id. The court considers below whether
plaintiff has shown that he was in imminent danger at the
time he filed the complaint.
has chosen to starve himself in order to avoid receiving a
diet currently prescribed to him. With rare exception, a
plaintiff cannot “create the imminent danger so as to
escape the three strikes provision of the PLRA.”
Ransom v. Hubbard, No. 1:11-cv-00875 GBC (PC), 2012
WL 3704760, at *4 (E.D. Cal. Aug. 24, 2012) (citations
omitted); see Taylor v. Walker, No. 07-706 MJR, 2007
WL 4365718, at *2 (S.D. Ill.Dec. 11, 2007); see also Bell
v. Allen, No. 06-0496 CG M, 2007 WL 484547, at *2 (S.D.
Ala. Feb.8, 2007); Muhammed v. McDonough, No.
3:06-cv-527-J-32TEM, 2006 WL 1640128, at *1 n.1 (M.D. Fla.
June 9, 2006); Wallace v. Cockrell, No.
3:03-MC-98-K, 2003 WL 22961212, at *2 (N.D. Tex. Oct.27,
2003). Typically, “self-harm is not encompassed within
the statutory reference to ‘imminent danger of serious
bodily injury'. If that were the case, virtually every
prisoner plaintiff could make such a claim.” Fails
v. Simon, No. 3:09-cv-525 RV MD, 2009 WL 5217072, at *2
(N.D. Fla. Dec. 30, 2009); but see Sanders v.
Melvin, 873 F.3d 957, 961 (7th Cir. 2018) (stating
self-harm as consequence of condition that prompted suit
warrants treatment of allegation as imminent physical
injury). Moreover, plaintiff does not allege that he has been
deprived of his constitutional right to nutritionally
adequate meals. See McElyea v. Babbitt, 833 F.3d
196, 198 (9th Cir. 1987) (citations omitted) (acknowledging
right to be provided with food sufficient to sustain one in
good health that satisfies law of religion).
these reasons, plaintiff has not established that he was in
imminent danger of serious physical injury at the time he
filed the instant complaint. Consequently, the undersigned
shall recommend that plaintiff be ordered to pay the ...