United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. He filed this action
on September 9, 2019, seeking relief pursuant to 42 U.S.C.
§ 1983. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Before
the court is plaintiff's complaint for screening and
plaintiff's motion to proceed in forma
pauperis. For the reasons set forth below, this
court finds plaintiff fails to meet the standards to proceed
in forma pauperis and recommends this action be dismissed if
plaintiff fails to pay the filing fee.
FORMA PAUPERIS STATUTE
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court to authorize the commencement and
prosecution of any suit without prepayment of fees by a
person who submits an affidavit indicating that the person is
unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding 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).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
If a prisoner has “three strikes” under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception,
the complaint of a “three-strikes” prisoner must
plausibly allege that the prisoner was faced with imminent
danger of serious physical injury at the time his complaint
was filed. See Williams v. Paramo, 775 F.3d 1182,
1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
PLAINTIFF ACCRUED THREE STRIKES?
has several other pending actions in this court. In one,
Judge Nunley recently held that plaintiff accrued three
strikes prior to filing the complaint in that case.
Arendas v. Vega, No. 2:19-cv-1332 TLN EFB P, 2019 WL
6975558 (E.D. Cal. Dec. 20, 2019). The cases which Judge
Nunley found to be strikes under 28 U.S.C. § 1915(g)
are: (1) Arendas v. Somerset County Sheriff's
Dep't, No. 3:09-cv-5782-FLW-TJB, 2010 WL 2539425 (D.
N.J. June 16, 2010); (2) Arendas v. Hillsborough Police
Dep't., No. 3:09-cv-5965, 2010 WL 2682163 (D. N.J.
July 2, 2010); and (3) Arendas v. Somerset County
Sheriff's Dep't, No. 3:09-cv-6061-JAP-TJB, 2010
WL 2696323 (D. N.J. July 6, 2010). Id. at *1. Each
of these cases was dismissed prior to the filing of the
complaint in the present case as well. Accordingly, plaintiff
accrued three strikes prior to filing this case and may not
proceed unless he can show he “is under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g).
PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL
availability of the imminent danger exception turns on the
conditions a prisoner faced at the time the complaint was
filed, not at some earlier or later time. See
Andrews, 493 F.3d at 1053. “[A]ssertions of
imminent danger of less obviously injurious practices may be
rejected as overly speculative or fanciful.”
Id. at 1057 n.11. Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical. To meet his burden 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.” Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003). “Vague and utterly
conclusory assertions” of harm are insufficient.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998). That is, the “imminent danger” exception
is available “for genuine emergencies, ” where
“time is pressing” and “a threat . . . is
real and proximate.” Lewis v. Sullivan, 279
F.3d 526, 531 (7th Cir. 2002).
court has reviewed plaintiff's complaint filed September
9, 2019. (ECF No. 1.) Plaintiff makes three claims: (1)
defendants are violating his due process right of access to
the courts by refusing to provide him with signed forms to
support his requests to proceed in forma pauperis; (2)
defendants' actions amount to retaliation against
plaintiff for filing lawsuits; and (3) defendants have
refused to provide plaintiff with legal materials.
does not allege that he is at risk of any sort of physical
injury. Therefore, plaintiff fails to meet the imminent
danger exception to § 1915(g). Plaintiff should only be