United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
PAUPERIS BE DENIED [ECF NO. 1]
Danney James Cohea is appearing pro se in this civil rights
action pursuant to 42 U.S.C. § 1983.
filed the instant action on September 13, 2019, along with an
application to proceed in forma pauperis.
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). 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).
review of the actions filed by Plaintiff reveals that he 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. The Court takes judicial notice of
the following cases: (1) Cohea v. Bray, Case No.
2:97-cv-00366-FCD-DAD (E.D. Cal.) (dismissed on March 3,
2998, for failure to state a claim); (2) Cohea v. Acess
Secure Pack, No. 3:09-cv-0679-RCJ-RAM (D. Nev.)
(dismissed on August 3, 2010, for failure to state a claim),
(3) Cohea v. Patzloff, Case No. 3:10-cv-0437-IEG-RBB
(S.D. Cal.) (dismissed on March 2, 2011, for failure to state
a claim and for failure to comply with the Court's
orders). Indeed, Plaintiff has previously been advised by
this Court that he is subject to the three-strikes provision
in Cohea v. Faldon, Case No. 1:16-cv-00955-DAD-EPG
(E.D. Cal.) (denying application to proceed in forma pauperis
under 28 U.S.C. § 1915(g) and dismissing case for
failure to pay the filing fee on February 23, 2017).
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 at the time
he filed the complaint. Plaintiff seeks relief for
retaliation, improper classification status, and false
allegations resulting in the denial of parole. Plaintiff
contends that he is under imminent danger of serious physical
injury because he is at risk of violence against him for
improperly being labeled as a sex offender with suffixes
“R” (for rapist) and “IEX” (for
exhibitionist/indecent exposure) as part of his
classification. Plaintiff references instances of
misclassification in 2007, 2008, and 2016, and a parole
hearing in 2014, and a false rules violation in 2015.
However, Plaintiff's complaint is devoid of any factual
allegations to demonstrate that he was under specific danger
of physical harm at the time he filed the complaint. Rather,
Plaintiff contends that since the “R” and
“IEX” suffixes he has “been subject to
‘threat to (his) safety' by the possibility (i.e.
likelihood) of a ‘cell mate' becoming aware of the
‘R' suffix.” (Compl. at 6, ECF No.
Plaintiff's generalized fear of potential harm is
insufficient to satisfy section 1915(g)'s
“imminence” requirement. 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
the Clerk of the Court is HEREBY DIRECTED to randomly assign
a District Judge to this action.
for the reasons explained above, it is HEREBY RECOMMENDED
1. Plaintiff's application to proceed in forma pauperis
be denied; and
2. Plaintiff be required to pay the $400.00 filing fee within
thirty (30) days of service of the Court's order adopting
these Findings and Recommendations.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with
these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff is advised
that failure to file objections within the specified time may
result in the waiver of ...