McClellan v. Kern County Sheriff's Office et al

Filing 141

ORDER DENYING 128 Plaintiff's Motion to Proceed IFP and ORDER DIRECTING Plaintiff to Pay the $400.00 Filing Fee Within Fourteen (14) Days, signed by Magistrate Judge Michael J. Seng on 1/15/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY McCLELLAN,

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Plaintiff,
v.

CASE NO. 1:10-cv-0386-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS
(ECF NO. 128)

KERN COUNTY SHERIFF’S OFFICE,
et al.,

FOURTEEN (14) DAY DEADLINE

Defendants.
Plaintiff is a former state prisoner proceeding pro se in this civil rights action
brought pursuant to 42 U.S.C. § 1983. At the time that he filed suit on March 4, 2010,
Plaintiff was incarcerated and had accrued three strikes pursuant to 28 U.S.C. § 1915(g).
Although he was initially granted leave to proceed in forma pauperis (ECF No. 4), the
order to that effect was revoked on September 28, 2015 after it was determined that
Plaintiff’s complaint did not satisfy the “imminent danger” exception outlined in 28 U.S.C.
§ 1915(g). (ECF No. 124.) Plaintiff was thus directed to pay the filing fee of $400 or his
case would be dismissed without prejudice for failure to prosecute.
In response to the Court’s September 28, 2015, order, and in light of his recent
release from prison, Plaintiff has now filed a second motion to proceed in forma
pauperis. (ECF No. 128.) Plaintiff contends that since he has been released from prison,
28 U.S.C. § 1915(g) is no longer applicable to him, and he should therefore be granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. §1915(a)(1). Defendant
opposes the motion.

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The in forma pauperis statute, 28 U.S.C. § 1915, distinguishes unincarcerated

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indigent people from incarcerated ones. Under § 1915(a)(1), a non-prisoner plaintiff may

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file suit without prepaying fees, provided he or she submits an affidavit demonstrating

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“that the person is unable to pay such fees or give security therefor.” Escobedo v.

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Applebees, 787 F.3d 1226, 1232 (9th Cir. 2015); Ingle v. Cir. City Stores, Inc., 328 F.3d

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1165, 1177 (9th Cir. 2003). An indigent prisoner, by contrast, is not exempt from

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prepayment. 28 U.S.C. § 1915(b)(1). Instead, the prisoner must submit a copy of his or

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her trust account statement, make an initial upfront payment, followed by subsequent

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monthly installments, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(1)-(2). An

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indigent prisoner is also subject to the limitations imposed by 28 U.S.C. § 1915(g), which

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provides that:

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In 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.

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Plaintiff, as a “three-striker,” is subject to this latter provision.

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Plaintiff’s argument that 28 U.S.C. § 1915(g) does not apply to him because he is

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no longer incarcerated is unavailing. Whether or not he is incarcerated now is immaterial

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since the relevant inquiry is whether he was incarcerated at the time that he filed this

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action.

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In a related context, the Ninth Circuit was asked to consider the availability of 28

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U.S.C. §1915(g)’s “imminent danger” exception to a plaintiff who was released from

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prison after filing suit:

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The PLRA provides that a prisoner with three strikes cannot
use IFP status to “bring a civil action ... unless the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g) (emphases added). The exception's use of the
present tense, combined with its concern only with the initial
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act of “bring[ing]” the lawsuit, indicates to us that the
exception applies if the danger existed at the time the
prisoner filed the complaint. See United States v. Jackson,
480 F.3d 1014, 1018-19 (9th Cir. 2007) (noting the use of
tenses in statutes generally is significant and “one would not
refer in the present tense to something that had already
happened” (citing The Dictionary Act, 1 U.S.C. § 1)). In other
words, the 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. Andrews's removal from the
California prison system after filing the complaint is
therefore irrelevant to our § 1915(g) analysis.

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Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007) (emphasis added.) As

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the court noted, “it is the circumstances at the time of the filing of the complaint that

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matters for purposes of the ‘imminent danger’ exception to § 1915(g).” Id. at 1053. In the

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absence of controlling authority holding otherwise, the undersigned sees no reason to

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impose a different standard for the rule than for the exception. Plaintiffs’ subsequent

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release from prison, therefore, does not alter the Court’s analysis regarding his inability

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to proceed in forma pauperis in light of his three-striker status and his failure to satisfy
the “imminent danger” exception.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 128) is DENIED; and
2. Pursuant to the September 28, 2015, Order, Plaintiff is directed to pay the

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filing fee of $400.00 within fourteen (14) days of service of this order; Plaintiff

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is again warned that failure to pay the filing fee will result in dismissal without

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prejudice for failure to prosecute.

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IT IS SO ORDERED.

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Dated:

January 15, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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