Simmons v. Akanno et al
Filing
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ORDER REVOKING In Forma Pauperis Status; Plaintiff is Ordered to Pay Remaining Balance of Filing Fee within thirty (30)days, signed by Magistrate Judge Gerald B. Cohn on 06/06/2011. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER SIMMONS,
CASE NO: 1:09-cv-00659-GBC (PC)
Plaintiff,
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ORDER REVOKING IN FORMA PAUPERIS
STATUS
v.
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JONATHAN AKANNO, et al.,
PLAINTIFF IS ORDERED TO PAY
REMAINING BALANCE OF FILING FEE
WITHIN THIRTY DAYS
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Defendants.
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ORDER
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I.
PROCEDURAL HISTORY
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Christopher Simmons (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on April 13, 2009. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction
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pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 9.) This action proceeds on Plaintiff’s Third
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Amended Complaint, which has not yet been screened by this Court. (ECF No. 28.) No
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other parties have appeared.
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Plaintiff brings this civil rights action against various California Department of
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Corrections and Rehabilitation (“CDCR”) employees, medical staff, the CDCR itself, and
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Kern Valley State Prison, among others. Plaintiff alleges a multitude of violations including
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interference with access to courts and retaliation for exercising his free speech rights both
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in violation of the First Amendment, due process violations, inadequate medical care in
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violation of the Eighth Amendment, equal protection violations, and actions under the
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American’s with Disabilities Act, among others.
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A review of the record of actions and appeals filed by Plaintiff in the United States
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District Court and in the Ninth Circuit revealed that Plaintiff filed three or more actions or
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appeals that were dismissed as frivolous, malicious, or for failure to state a claim upon
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which relief may be granted. Relying on Section 1915(g), the Court ordered that Plaintiff
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show cause why he did not meet the three-strike criteria and why his in forma pauperis
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(“IFP”) status should not be revoked. (ECF No. 30.) Plaintiff was given thirty days to
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respond.
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On May 25, 2011, Plaintiff filed his response arguing imminent danger at the time
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of the complaint: 1) imminent danger must have been found when the IFP order was
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granted, and 2) Plaintiff remains in imminent danger. (ECF No. 31.) The pleading goes
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on, at some length, about another case of his that is also before this Court, requests
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severance of state claims, details events that occurred while he was ADA chairman, states
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concerns about placement of lockers in cells, and makes the statement that he “remained
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under imminent danger until and after his transfer” (ECF No. 31, p. 4), among other things.
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II.
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LEGAL STANDARD AND ANALYSIS
Section 1915 of Title 28 of the United States Code governs proceedings in forma
pauperis. Section 1915(g) 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).1 Determining whether Plaintiff’s actions and appeals count as strikes
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under Section 1915(g) requires the Court to conduct a “careful examination of the order
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dismissing an action, and other relevant information,” to determine if, in fact, “the action
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“This subdivision is com m only known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or
appeals, brought while the plaintiff was a prisoner, which were dism issed ‘on the ground that [they were]
frivolous, m alicious, or fail[ ] to state a claim ’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g),
a prisoner with three strikes or m ore cannot proceed [in form a pauperis].” Andrews v. King, 398 F.3d
1113, 1116 n.1 (9th Cir. 2005).
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was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v.
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King, 398 F.3d 1113, 1121 (9th Cir. 2005).
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As previously noted in the Show Cause Order, the Court took judicial notice that
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Plaintiff had two prior actions dismissed for being frivolous and/or for failing to state a claim
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for which relief can be granted under Section 1983 and three appellate cases dismissed
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based on a similar finding and Plaintiff’s subsequent failure to pay the filing fee.2
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Therefore, as previously found in Simmons v. Clark, 88 Fed.Appx. 275, 2004 WL 363452,
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No. 03-15439 (9th Cir.), Plaintiff has three or more strikes and became subject to Section
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1915(g) well before filing this action on April 13, 2009.
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Plaintiff now argues, pursuant to Section 1915(g), that his original complaint does
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include allegations that he was “under imminent danger of serious physical injury.” Plaintiff
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is correct in that he made the conclusory allegation that he was in imminent danger.
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Plaintiff included the phrase “under imminent danger of serious physical injury” in the title
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of his original complaint. Plaintiff also repeatedly stated that he suffered serious physical
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injury and remained under imminent danger of physical injury, and that he feared for his
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safety. However, these statements appear to be unfounded as they are not explained by
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any additional facts nor is any imminent danger obvious from his statement of the case and
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the alleged claims. Plaintiff does not explain why he feared for his safety. He does state
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that he was threatened by staff. However, verbal abuse is not sufficient to demonstrate
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imminent harm of physical danger. Further, it does not appear from the complaint that he
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had any reason to fear for his safety or was in any form of imminent danger. Plaintiff’s
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Sim m ons v. Sacram ento Super. Ct., 2:00-cv-02596-GEB-JFM (PC) (E.D. Cal.) (dism issed June
20, 2001 for failure to state a claim ); Sim m ons v. Sacram ento Super. Ct., 2:99-cv-00789-FCD-JFM (PC)
(E.D. Cal.) (dism issed August 24, 1999 for being frivolous); Sim m ons v. Sacram ento County Super. Ct.,
No. 99-17234 (9th Cir.) (dism issed March 9, 2000 for failure to prosecute after a finding of frivolousness
and/or failure to state a claim upon which relief m ay be granted and Plaintiff’s subsequent failure to pay
the filing fee); Sim m ons v. Clark, No. 01-16488 (9th Cir.) (dism issed Decem ber 19, 2001 for failure to
prosecute after a finding of frivolousness and/or failure to state a claim upon which relief m ay be granted
and Plaintiff’s subsequent failure to pay the filing fee); Sim m ons v. Clark, 88 Fed.Appx. 275, 2004 W L
363452, No. 03-15439 (9th Cir.) (dism issed February 26, 2004 after the Court affirm ed the District Court’s
dism issal of Plaintiff’s action pursuant to Section 1915(g) because “the record show[ed] that [Plaintiff] has,
on three or m ore prior occasions, brought an action that was dism issed as frivolous, m alicious, or for
failure to state a claim .” Id. at 275.).
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original complaint makes several claims including interference with legal mail and access
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to courts both, apparently, in retaliation for filing grievances, medically-related complaints,
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and ADA-related complaints.
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It appears to the Court that the only allegations having any possible connection to
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imminent danger are his pain medication allegations. Plaintiff details bits and pieces of his
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medical history stating that he was given pain medication; medical personnel reduced the
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amount he was given daily; the dosage was then increased; he was “shorted” pain
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medication; and that he eventually received pain medication three times per day again.
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It appears to the Court that, at the time of the original complaint, Plaintiff was receiving pain
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medication, though he occasionally disagreed with the dosage. Thus, these allegations
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do not qualify as imminent danger.
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Plaintiff stated that disabled inmates were in imminent danger due to the placement
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of lockers in the prison cells and their sharp edges. However, it appears to the Court that
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Plaintiff was expressing a possibility of harm due to the placement of the lockers in the cell.
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A possibility of harm does not demonstrate imminent danger of physical harm.
The remainder of Plaintiff’s complaint appears to explain other claims of action
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already determined in previous cases. It is difficult for the Court to determine what exact
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claims Plaintiff is attempting to pursue in this action. Regardless, Plaintiff does not
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demonstrate that he was in imminent harm at the time of the original complaint.
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III.
CONCLUSION AND ORDER
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The Court has reviewed Plaintiff’s original complaint filed April 14, 2009 and finds
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that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes, 493
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F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff alleges no facts supporting a finding
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that he is under imminent danger of serious physical injury, Plaintiff is ineligible to proceed
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in forma pauperis in this action.
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Accordingly, it is HEREBY ORDERED that:
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Plaintiff’s in forma pauperis status in this action is REVOKED; and
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Plaintiff is given thirty days to pay the remaining balance of the filing fee.
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Failure to do so will result in the dismissal of this action.
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IT IS SO ORDERED.
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Dated:
1j0bbc
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June 6, 2011
UNITED STATES MAGISTRATE JUDGE
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