United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (DOC.
NOS. 7, 8)
Rodney Jerome Womack 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.
20, 2019, the assigned magistrate judge issued findings and
recommendations, recommending that plaintiff's
application to proceed in forma pauperis
(“IFP”) be denied pursuant to 28 U.S.C. §
1915(g) and that plaintiff be required to pay the $400.00
filing fee in full to proceed with this action. (Doc. No. 8.)
Those findings and recommendations were served on plaintiff
and contained notice that any objections thereto were to be
filed within fourteen (14) days after service. (Id.
at 3.) Plaintiff has not filed any objections.
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), the court has conducted a de novo review
of the case. Having carefully reviewed the entire file, the
court finds the findings and recommendations to be supported
by the record and by 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 enough prior strike dismissals to be barred
under the “three strikes” provision, he contends
that he qualifies for the exception in that provision
applicable to prisoners who face “imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
assigned magistrate judge rejected that argument in the
pending findings and recommendations, concluding that
plaintiff's allegations that the prison's decision to
discontinue treatment of his chronic medical condition caused
him “excruciating pain” were belied by his
failure to request injunctive relief to remedy his
situation. (Doc. No. 8.)
§ 1915(g), a plaintiff can proceed IFP if his complaint
contains “a plausible allegation that the prisoner
faced ‘imminent danger of serious physical injury'
at the time of filing.” Andrews v. Cervantes,
493 F.3d 1047, 1053-55 (9th Cir. 2007) (“[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.”). Moreover, in determining
whether the exception applies in a given case, the court
“should not make an overly detailed inquiry into
whether the allegations qualify for the exception[.]”
Id. at 1055.
court acknowledges that plaintiff's initial failure to
seek injunctive relief may raise some doubt as to the
legitimacy of his claim, particularly in light of his many
prior strike dismissals. But as a pro se litigant,
plaintiff is entitled to liberal construal of his
allegations. Andrews, 493 F.3d at 1055 (citations
omitted). This means the court should be cautious about
withholding IFP status merely because plaintiff requested the
wrong form of relief, an oversight he now appears to be
attempting to correct. (See Doc. No. 9.)
plaintiffs allegation that “walking on uneven terrain
causes [him] excruciating pain and suffering 24 hours
everyday” (Doc. No. 1 at 6) is insufficient to support
an inference of “imminent danger of serious physical
jury.” 28 U.S.C. § 1915(g); see Fields v.
Omosaiye, No. 18-cv-04469-CRB (PR), 2019 WL 1755712, at
*2 (N.D. Cal. Apr. 19, 2019) (“[C]hronic pain generally
is not enough to support an inference of imminent
danger.”) (citing Fletcher v. Sherman, No.
1:18-cv-01317-LJO-EPG, 2018 WL 6385538, at *5 (E.D. Cal. Dec.
6, 2018)). Though plaintiffs allegations of chronic pain, in
conjunction with the allegation that his most recent doctor
improperly discontinued his medical treatment, makes this a
closer call, plaintiffs mere “disagree[ment] with
prison medical personnel about the course or adequacy of any
treatment he was receiving does not establish imminent
danger.” Balzarini v. Lewis, No.
1:13-cv-00820-LJO, 2015 WL 2345464, at *8 (E.D. Cal. May 14,
2015) (collecting cases).
1. The findings and recommendations issued on May 20, 2019,
(Doc. No. 8), are adopted;
2. Plaintiffs application to proceed in forma
pauperis, (Doc. No. 7), is denied pursuant to 28 U.S.C.
3. Within twenty-one (21) days from the date of service of
this order, plaintiff shall pay the $400.00 filing fee in
full to proceed with this action;
4. Plaintiff is forewarned 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
5. The matter is referred back to the assigned magistrate for
further proceedings ...