United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF'S APPLICATION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS BE DENIED (ECF NO. 4)
Plaintiff
Billy Driver, Jr. is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff initiated this action on December 10,
2019. (ECF No. 4)
Currently
before the Court is Plaintiffs application to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915, filed
on December 10, 2019. (ECF No. 4.)
I.
LEGAL
STANDARD
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). 28 U.S.C. § 1915(g) provides
that: "In 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." Therefore, if a
prisoner has incurred three or more "strikes"
(i.e., three or more cases that were dismissed on
the grounds that the cases were frivolous, malicious, or
failed to state a claim upon which relief may be granted)
before filing a new civil action, the prisoner is precluded
from proceeding in forma pauperis in the new civil
action unless the complaint makes a plausible allegation that
the prisoner faced "imminent danger of serious physical
injury" at the time the complaint was filed. Andrews
v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007); see
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003) (explaining that, to qualify for the imminent danger
exception under § 1915(g), an inmate must provide
"specific fact allegations of ongoing serious physical
injury, or a pattern of misconduct evidencing the likelihood
of imminent serious physical injury []").
II.
DISCUSSION
Initially,
the Court finds that Plaintiff has incurred three or more
"strikes" under § 1915(g) prior to filing the
instant civil action. The Court take judicial notice of the
following cases[1]: (1) Driver v. Martel, No.
2:08-cv-01910-GEB-EFB (E.D. Cal.) (dismissed on September 15,
2009 for failure to state a claim); (2) Driver v.
Kelso, No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed on
September 12, 2012 for failure to state a claim, after
Plaintiff failed to file an amended complaint following a
screening order dismissing complaint for failure to state a
claim and warning plaintiff that failure to file an amended
complaint would result in action being dismissed for failure
to state a claim); and (3) Driver v. Epp, No.
2:12-cv-00589-EFB (E.D. Cal.) (dismissed on September 5, 2012
for failure to state a claim). See Harris v. Mangum,
863 F.3d 1133, 1143 (9th Cir. 2017) ("Accordingly, we
hold that when (1) a district court dismisses a complaint on
the ground that it fails to state a claim, (2) the court
grants leave to amend, and (3) the plaintiff then fails to
file an amended complaint, the dismissal counts as a strike
under § 1915(g)."). Therefore, Plaintiffs
application to proceed in forma pauperis must be
denied unless his complaint makes a plausible allegation that
he faced "imminent danger of serious physical
injury" at the time that he filed his complaint on
December 10, 2019. Andrews, 493 F.3d at 1053-56.
In his
complaint, Plaintiff alleges that, on August 12, 2014,
correctional staff members at California State Prison, Los
Angeles County unlawfully confiscated his legal documents and
impeded his constitutional right to access the courts. (ECF
No. 1, at 3.) Second, Plaintiff alleges that, on November 22,
2019, a correctional officer at Kern Valley State Prison
assisted Plaintiff in filing an ADA accommodation request to
obtain funds to hire an attorney so that he can re-file the
lawsuit against two California State Prison, Los Angeles
County correctional staff members, but his request for an ADA
accommodation has not been responded to even though more than
two weeks have passed. (Id. at 4.) Third, Plaintiff
alleges, under the heading of "Unlaw Keyhea order(s)
forced medication/painful injections," that, on January
3, 2017, he received a "115x psych eval notice on 2017 @
CSP-LAC Lieutenant Grave(s) issue order(s) to: reduce 115x
and 115 down to (A) 128 Info chrono[.]" (Id. at
5.) Finally, Plaintiff alleges that he did not submit or
appeal a request for administrative relief because
"imminent danger(s) of more physical harm(s) @ the
hand(s) of rogue violent guards." (Id. at 4,
5.)
However,
these allegations fail to demonstrate that Plaintiff was in
imminent danger of serious physical injury at the time
Plaintiff filed his complaint. Andrews, 493 F.3d at
1056-57. Initially, since Plaintiff is no longer incarcerated
at California State Prison, Los Angeles County, he cannot be
under imminent danger of serious physical injury from persons
at California State Prison, Los Angeles County. Further,
Plaintiffs allegations regarding unlawful Keyhea orders,
forced medication, and painful injections are too vague and
conclusory to establish that Plaintiff was in imminent danger
of serious physical harm at the time his complaint was filed.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998) (stating that "vague and utterly conclusory
assertions" of harm are insufficient to establish
imminent danger of serious physical harm under §
1915(g)). Finally, Plaintiffs contentions about being in
imminent danger of "more physical harm(s) [at] the
hand(s) of rogue violent guards" are conclusory and
merely speculative. Blackman v. Mjening, No.
1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal.
Oct. 4, 2016) ("Imminent danger of serious physical
injury must be a real, present threat, not merely speculative
or hypothetical."). Therefore, since Plaintiff has not
satisfied the imminent danger exception to three-strikes rule
of § 1915(g), Plaintiffs application to proceed in
forma pauperis must be denied. If Plaintiff
wishes to proceed with this action, Plaintiff must pre-pay
the $400.00 filing fee in full.
III.
ORDER
AND RECOMMENDATIONS
Accordingly,
the Court HEREBY ORDERS the Clerk of the Court to randomly
assign a ...