United States District Court, E.D. California
MATTHEW A. LAWRIE, Plaintiff,
SERGEANT D. WILLIAMS, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING
PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS (DOC. NOS. 2,
Matthew A. Lawrie is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
15, 2019, the assigned magistrate judge issued findings and
recommendations, recommending that plaintiff’s
application to proceed in forma pauperis
(“IFP”) under 28 U.S.C. § 1915(g) be denied
and that plaintiff be ordered to pay the required $400.00
filing fee for this action in full within thirty (30) days.
(Doc. No. 2.) On May 28, 2019, plaintiff filed objections to
the findings and recommendations. (Doc. No. 3.)
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(B) and Local Rule 304, the court has conducted a
de novo review of this case. Having carefully
reviewed the entire file, including plaintiff’s
objections, the court finds the findings and recommendations
to be supported by the record and proper analysis.
28 U.S.C. § 1915(g)’s so–called “three
strikes” provision, prisoners may be barred from
proceeding IFP if they, “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 . . .
.” Although plaintiff does not contest that he has
accumulated seven prior strike dismissals, enough to be
barred by the “three strikes” provision, he
contends that he qualifies for the exception for prisoners
who face “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). In this regard, in
his objections plaintiff states, “[S]ince filing via
U.S. Mail on April 11, 2019, Plaintiff has been threatened
with serious injury and is confined to his cell, save for
Tuesday groups and law library, which is under escort.”
(Doc. No. 3 at 2.) In his objections, plaintiff also
reiterates the claims in his complaint that he was assaulted
by correctional officers on November 14, 2018, resulting in
physical and mental injuries. (Doc. No. 1 at 5.) The court
finds plaintiffs objections to be unavailing.
the complaint and objections do not evince an “imminent
danger of serious physical injury” at the time the
complaint was filed. 28 U.S.C. § 1915(g); see
Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir.
2007) (defining imminent to refer not “only to events
that are already taking place, but to those events
‘ready to take place’ or ‘hanging
threateningly over one’s head’” (citations
omitted)). As the magistrate judge noted, plaintiff filed
this action six months after the alleged attack on November
14, 2018. See, e.g., Malone v. Beard, No.
2:14-cv-2096-KJN, 2016 WL 801544, at *2 (E.D. Cal. Mar. 1,
2016) (concluding that “there is no suggestion that
plaintiff is in danger of serious physical injury” when
he filed a complaint “over two years after the
occurrence of the incidents at issue . . . .”); see
also Cervantes, 493 F.3d at 1053 (“[T]he
availability of the exception turns on the conditions a
prisoner faced at the time the complaint was filed, not at
some earlier or later time.”); Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting that
§ 1915(g) is available for “genuine
emergencies” where “time is pressing” and a
threat is “real and proximate”).
plaintiffs complaint fails to make “specific fact
allegations of ongoing serious physical injury, or
of a pattern of misconduct evidencing the likelihood of
imminent serious physical injury.” Cervantes,
493 F.3d at 1056 (quoting Martin v. Shelton, 319
F.3d 1048, 1050 (8th Cir.2003)). Although plaintiff alleges a
“fear of further violations of intentional assault,
” (Doc. No. 1 at 5), and threats of serious injury,
(Doc. No. 3 at 2), his claims lack specificity and fail to
allege either ongoing serious physical injury or a pattern of
misconduct that would indicate a likelihood of such injury at
the time his complaint was filed.
reasons discussed above, plaintiff does not meet the
“imminent danger of serious physical injury”
exception under 28 U.S.C. § 1915(g).
findings and recommendations issued on May 15, 2019, (Doc.
No. 2), are adopted in full;
Plaintiff is denied leave to proceed in forma
pauperis under 28 U.S.C. § 1915(g);
Within thirty (30) days from the date of service of this
order, plaintiff is required to pay the $400.00 filing fee in
full for this action;
Plaintiff is warned that failure to comply with this order
will result in the dismissal of this action without prejudice
to refiling upon prepayment of the required filing fee; and
matter is referred back to the assigned magistrate judge for