Gregorio Funtanilla v. Williams et al

Filing 4

ORDER granting 1 Motion to Proceed IFP signed by Magistrate Judge Dennis L. Beck on 9/22/2010. (Lundstrom, T)

(PC) Gregorio Funtanilla v. Williams et al

Doc. 4

1 2 3 4 5 EASTERN DISTRICT OF CALIFORNIA 6 7 GREGORIO FUNTANILLA, JR., 8 9 v. Plaintiff, CASE NO. 1:10-CV-01624-DLB PC ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO IMMINENT DANGER EXCEPTION (DOC. 1) 11 12 13 Plaintiff Gregorio Funtanilla, Jr. ("Plaintiff") is a prisoner in the custody of the California Defendants. /

UNITED STATES DISTRICT COURT

10 ROMAN W. WILLIAMS, et al.,

14 Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se in this civil rights 15 action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's motion to proceed in 16 forma pauperis. (Doc. 1.) Plaintiff contends that he should be allowed to proceed in forma 17 pauperis pursuant to the imminent danger exception of 28 U.S.C. § 1915(g). 18 The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a

19 civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated 20 or detained in any facility, brought an action or appeal in a court of the United States that was 21 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 23 U.S.C. § 1915(g). 24 Court records reveal that Plaintiff has accumulated at least three dismissals for

25 frivolousness or failure to state a claim as of March 14, 2001. The Court takes judicial notice of 26 the following cases that qualify as strikes pursuant to 28 U.S.C. § 1915(g): Funtanilla v. R. 27 Tieman, et al., Case No. 2:92-CV-01017-LKK-JFM (E. D. Cal.) (dismissed 10/08/1992 as 28 frivolous); Funtanilla v. Duke-Bray, et al., Case No. 3:98-CV-03779-TEH (N. D. Cal.) 1
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1 (dismissed 01/06/1999 for failure to state a claim); Funtanilla v. Ninevella, et al., Case No. 1:982 CV-06365-AWI-SMS PC (E. D. Cal.) (dismissed 03/14/2001 for failure to state a claim); 3 Plaintiff thus is not allowed to proceed in forma pauperis in this action unless Plaintiff can 4 demonstrate Plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 5 1915(g). 6 "[T]he availability of the [imminent danger] exception turns on the conditions a prisoner

7 faced at the time the complaint was filed, not at some earlier or later time." Andrews v. 8 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). To meet the imminent danger requirement, the 9 threat or prison condition must be real and proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 10 (7th Cir. 2003), and the danger of serious physical injury must exist at the time the complaint is 11 filed, Abdul-Akbar v. McKelvie, 238 F.3d 307, 313-14 (3d Cir. 2001); Medberry v. Butler, 185 12 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). 13 Here, Plaintiff alleges in the complaint that Plaintiff is in imminent danger of serious

14 injury. (Compl. Doc. 2.) Plaintiff contends that he needs two teeth extractions. (Compl. 4.) 15 Plaintiff contends that one tooth is broken in half, and another is loose on both sides, exposing 16 the nerve. (Id.) Plaintiff contends that his gums are infected under these teeth and the infection 17 is spreading. (Id.) Plaintiff contends that as of September 30, 2010, the prison is under 18 lockdown because of an inmate assault. (Id.) Plaintiff has made numerous requests to receive 19 dental care, but he has not received it. (Id.) Plaintiff was informed by dental staff that there are 20 inmates on the waiting list before him and a shortage of dental staff. (Id.) Plaintiff contends he 21 will lose his whole jaw to gum disease, and has lost six pounds. (Id.) Plaintiff was forced to 22 exchange food for ibuprofen pills from other inmates. (Id. at 5.) 23 Plaintiff has sufficiently alleged imminent danger of a serious physical injury.

24 Accordingly, it is HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis is 25 GRANTED. 26 27 28 2 IT IS SO ORDERED. Dated: 3b142a

September 22, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE