East v. Wallace

Filing 11

ORDER signed by Chief Judge Anthony W. Ishii on 8/1/2011 revoking IFP Status and ordering Plaintiff to pay remaining balance of filing fee. (Case Management Deadline: 9/6/2011). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST,

CASE NO: 1:10-cv-02235-AWI-GBC (PC)
Plaintiff,

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ORDER REVOKING IN FORMA PAUPERIS
STATUS

v.
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C. WALLACE,

PLAINTIFF IS ORDERED TO PAY
REMAINING BALANCE OF THE FILING
FEE WITHIN THIRTY DAYS

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Defendant.
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ORDER

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I.

PROCEDURAL HISTORY

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Ebone Leroy East (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed

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this action on December 2, 2010. (ECF No. 1.) On December 6, 2010, the Court granted

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Plaintiff’s Motion to proceed IFP. (ECF No. 4.) This action proceeds on Plaintiff’s original

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Complaint, which has not yet been screened by this Court. No other parties have

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appeared.

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Plaintiff brings this civil rights action against C. Wallace, a correctional officer,

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alleging retaliation for exercising his free speech rights in violation of the First Amendment

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and a due process violation in relation to property.

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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 IFP status should not

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be revoked. (ECF No. 9.) Plaintiff was given thirty days to respond.
On July 13, 2011, Plaintiff filed his response arguing that only two of the cases

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should count as strikes meaning that this action would not fall under Section 1915(g).

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(ECF No. 10.) Plaintiff also argues that he was under threat of imminent danger at the time

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of writing of his complaint. (Id. at 2.)

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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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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 19832, four prior actions dismissed under

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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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East v. County of Riverside, 5:10-cv-01108-UA-E (PC) (C.D. Cal.) (dism issed August 5, 2010,
for failure to state a claim since federal court could not review state child support decision); East v. County
of San Bernardino, 5:10-cv-01381-UA-E (PC) (C.D. Cal.) (dism issed Septem ber 21, 2010, for failure to
state a claim and defendants entitled to im m unity).

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Heck v. Humphrey, 512 U.S. 477 (1994)3, and two appellate cases dismissed based on a

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similar finding and Plaintiff’s subsequent failure to pay the filing fee4. Therefore, Plaintiff

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has three or more strikes and became subject to Section 1915(g) before filing this action

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on December 2, 2010.

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Plaintiff now argues, pursuant to Section 1915(g), that only two of his cases should

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count as strikes and that his original complaint does include allegations that he was under

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imminent danger of serious physical injury.

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As noted in the Order to Show Cause, dismissals under Heck can count as strikes,

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see e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls

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under the rule in Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.

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1995) (“[I]n light of Heck, the complaint was properly dismissed for failure to state a

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claim.”), as can appeals, see 28 U.S.C. § 1915(g).

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Plaintiff is correct in that he did make the conclusory allegation that he was in

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imminent danger. However, this action is about Defendant not returning Plaintiff’s property

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in retaliation for filing grievances, violating the due process clause and the First

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Amendment. Neither of these claims lend themselves to the conclusion that Plaintiff was

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in imminent danger of bodily harm. It does not appear from the complaint that Plaintiff had

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any reason to fear for his safety nor does it appear that he was in any form of imminent

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danger.

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III.

CONCLUSION AND ORDER

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The Court has reviewed Plaintiff’s original complaint filed December 2, 2010 and

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finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes,

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East v. Gidcum b, 5:09-cv-01105-UA-E (PC) (C.D. Cal.) (dism issed June 17, 2009, for failure to
state a claim under Heck); East v. Pace, 5:09-cv-01810-UA-E (PC) (C.D. Cal.) (dism issed October 1,
2009, for failure to state a claim under Heck and because m any of the defendants were im m une); East v.
San Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.) (dism issed Decem ber 11, 2009, for failure
to state a claim under Heck); East v. Hoops, 5:10-cv-00949-UA-E (PC) (C.D. Cal.) (dism issed July 8,
2010, for failure to state a claim under Heck).
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East v. County of Riverside, No. 10-56454 (9th Cir. dism issed Novem ber 29, 2010); East v.
Hoops, No. 10-56258 (9th Cir. dism issed Novem ber 5, 2010).

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493 F.3d 1047, 1053 (9th Cir. 2007). Because Plaintiff alleges no facts supporting a

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finding that he is under imminent danger of serious physical injury, Plaintiff is ineligible to

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proceed in forma pauperis in this action.

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s in forma pauperis status in this action is REVOKED; and

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2.

Plaintiff is given thirty days to pay the remaining balance of the filing fee.

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IT IS SO ORDERED.

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Dated:
0m8i78

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August 1, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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