United States District Court, E.D. California
ORDER VACATING SEPTEMBER 5, 2019 ORDER GRANTING
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF
No. 12) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (ECF No.
11) OBJECTIONS DUE WITHIN THIRTY DAYS
Melvin Joseph Simmons is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. On July 18, 2019, Plaintiff initiated this
action in the Sacramento Division of the United States
District Court for the Eastern District of California. (ECF
No. 1.) On August 14, 2019, this action was transferred to
this Court. (ECF No. 5.) On August 15, 2019, the Court
ordered Plaintiff to submit an application to proceed in
forma pauperis, or pay the $400.00 filing fee, within
forty-five days. (ECF No. 8.)
September 3, 2019, Plaintiff filed an incomplete application
to proceed in forma pauperis. (ECF No. 11.)
Specifically, Plaintiff's application is incomplete
because Plaintiff only submitted the second page of the
two-page in forma pauperis application. However,
rather than properly denying, without prejudice,
Plaintiff's incomplete application to proceed in
forma pauperis, the Court inadvertently issued
an order granting Plaintiff's application to proceed
in forma pauperis. (ECF No. 12.) Upon review of the
application, the Court finds that Plaintiff's application
demonstrates the ability to pay the filing fee and therefore
he is not entitled to proceed without prepayment of fees.
Additionally, the Court has discovered that Plaintiff has
incurred three or more strikes under section 1915(g) of Title
28 of the United States Code prior to filing this lawsuit.
Therefore, the order granting Plaintiff in forma
pauperis status in this action is vacated and the Court
recommends that Plaintiff's application to proceed in
forma pauperis be denied.
Application to Proceed In Forma Pauperis
order to proceed in court without prepayment of the filing
fee, Plaintiff must submit an affidavit demonstrating that he
“is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Additionally a
prisoner is required to submit a certified copy of their
trust fund statement for the six month period preceding the
filing of the complaint. 28 U.S.C. . § 1915(a)(2). The
right to proceed without prepayment of fees in a civil case
is a privilege and not a right. Rowland v. California
Men's Colony, Unit II Men's Advisory Council,
506 U.S. 194, 198 n.2 (1993); Franklin v. Murphy,
745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to
proceed in forma pauperis is itself a matter of privilege and
not right; denial of in forma pauperis status does not
violate the applicant's right to due process”). A
plaintiff need not be absolutely destitute to proceed in
forma pauperis and the application is sufficient if it states
that due to his poverty he is unable to pay the costs and
still be able to provide himself and his dependents with the
necessities of life. Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948). Whether to grant or
deny an application to proceed without prepayment of fees is
an exercise of the district court's discretion.
Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir.
Plaintiff has not submitted the first page of the
application, however, any information that would be included
on that page would not change the Court's analysis. On
the second page which was submitted and signed by Plaintiff
he indicates that he has $1, 706.20 in cash. (ECF No. 11.)
Based on the information that Plaintiff has provided, the
Court finds that it demonstrates that he is financially able
to pre-pay the entire filing fee to commence this action.
Although the Ninth Circuit Court of Appeals has held that
“the filing fee … should not take the
prisoner's last dollar, ” Olivares v.
Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these
circumstances, Plaintiff has sufficient funds to pre-pay the
$400 filing fee with money left over. Accordingly, Plaintiff
is not entitled to proceed in this action without prepayment
28 U.S.C. 1915(g)
the Prison Litigation Reform Act of 1995 (PLRA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011) overruled on other grounds by
Coleman v. Tollefson, 135 S.Ct. 1759 (2015).
Pursuant to the PLRA, the in forma pauperis statue was
amended to include section 1915(g), a non-merits related
screening device which precludes prisoners with three or more
“strikes” from proceeding in forma pauperis
unless they are under imminent danger of serious physical
injury. 28 U.S.C. § 1915(g); Andrews v.
Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The
statute 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.” 28 U.S.C. § 1915(g).
Court finds that Plaintiff has incurred three or more strikes
under section 1915(g) prior to filing this lawsuit. The Court
takes judicial notice of the following cases: (1) Simmons
v. Lamarque, no. 5:03-cv-04509-JW (N.D. Cal.) (dismissed
July 27, 2007 for failure to state a claim); Simmons v.
Guirbino, no. 3:11-cv-02169-WHA (N.D. Cal.) (dismissed
July 1, 2011 for failure to state a claim); Simmons v.
Williams, no. 2:09-cv-03505-EFB (E.D. Cal.) (dismissed
April 11, 2012 for failure to state a claim); Simmons v.
Hatter, no. 2:12-cv-03098-UA-DUTY (W.D. L.A.) (dismissed
April 23, 2012 based on immunity and for seeking habeas
relief in the action.); Simmons v. Kernan, no.
5:16-cv-07319-LHK (N.D. Cal.) (dismissed July 25, 2017 for
failure to state a claim); Simmons v. Brown, no.
5:18-cv-06890-LHK (N.D. Cal.) (dismissed April 24, 2019 for
failure to state a claim.).
issue now becomes whether Plaintiff has met the imminent
danger exception, which requires Plaintiff to show that he is
under (1) imminent danger of (2) serious physical injury and
which turns on the conditions he faced at the time he filed
his complaint on July 26, 2019. Andrews, 493 F.3d at
1053-1056. Conditions which posed imminent danger to
Plaintiff at some earlier time are immaterial, as are any
subsequent conditions. Id. at 1053. While the injury
is merely procedural rather than a merits-based review of the
claims, the allegations of imminent danger must still be
plausible. Id. at 1055.
Court further finds that Plaintiff's complaint
allegations do not meet the imminent danger exception.
Andrews, 493 F.3d at 1053. Plaintiff has not shown
that he is at risk of any serious physical injury. Rather, in
seeking monetary damages, Plaintiff contends that on August
8, 2018, while housed Corcoran State Prison he was subjected
to excessive force when he was excessively sprayed with
pepper spray during a cell extraction. At the time that
Plaintiff filed his complaint and currently, he is housed at
High Desert State Prison, and there are no allegations that
he is in imminent danger of physical harm based on
allegations of excessive force that took place over a year
ago at a different prison. Accordingly, Plaintiff is
ineligible to proceed in forma pauperis in this action, and
he should be required to pre-pay the $400 filing fee to
proceed in this case.
CONCLUSION AND RECOMMENDATIONS
IT IS HEREBY ORDERED that the September 5, 2019 order
granting Plaintiff leave to proceed in ...