Moten v. Allison

Filing 7

ORDER DENYING 5 Plaintiff's Motion for In-Court Hearing; ORDER FINDING Plaintiff Ineligible to Proceed In Forma Pauperis and DISMISSING Action, Without Prejudice to Refiling With Submission of $350.00 Filing Fee In Full, signed by Chief Judge Anthony W. Ishii on 2/16/2012. CASE CLOSED. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE T. MOTEN,
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Plaintiff,
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vs.
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K. ALLISON,
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Defendant.
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____________________________________)

1:12-cv-00034-AWI-GSA-PC
ORDER DENYING MOTION FOR INCOURT HEARING
(Doc. 5.)
O R D E R FIN DING P LA IN T IFF
INELIGIBLE TO PROCEED IN FORMA
PAUPERIS AND DISMISSING ACTION,
WITHOUT PREJUDICE TO REFILING
WITH SUBMISSION OF $350.00 FILING
FEE IN FULL
ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Jesse T. Moten ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 19,

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2011. (Docs. 1, 2.) On February 8, 2012, Plaintiff filed a motion for the Court to schedule a hearing

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on “Imminent Endangerment of Life.” (Doc. 5.)

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II.

MOTION FOR HEARING

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Plaintiff requests an in-court hearing in this action to address Plaintiff’s allegations that

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defendants are targeting him with threats, sexual harassment, and assault, because of his participation

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in the Men’s Advisory Council. Specifically, Plaintiff seeks a court order appointing a Special Master

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to assist him with litigation of this action. In support of his motion for a hearing, Plaintiff submits his

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unverified declaration accusing Magistrate Judge Michael J. Seng of “act[ing] Judge, Police, Jury and

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Prosecutor of it’s own wrong, inventing outrageous and frivolous accusations about the defendants[] J.

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Gonzales, A. Bowman, T. Cogdil and D. Valtera” in 2008, which exposed Plaintiff to assaults and

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injury. (Moten Decl., Doc. 5 at ¶¶3,4.) Plaintiff refers to “civil litigation, at bar, against Orrin Grant

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Hatch and Newt Gingrich, under the AEDPA, or PLRA,” and complains that the “AEDPA became a tool

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to allow judicial fabrication to camo[u]flage the prisoners credibility.” Id. Plaintiff claims his “life is

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in Imminent Endangerment, for filing complaint grievances and litigation,” and that he has been

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retaliated against since filing a Superior Court action. Id. at ¶6.

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The Court finds no plausible evidence that Plaintiff is presently under threat of imminent danger.

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Plaintiff alleges no specific facts demonstrating that a prison official has made serious threats against

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him or taken any action preparing to cause harm to Plaintiff. With respect to an in-court hearing,

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Plaintiff was advised in the First Informational Order of January 10, 2012, that “[b]ecause plaintiff is

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incarcerated and proceeds pro se, all pre-trial motions will be submitted without a hearing. Local Rule

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230(l).” (Doc. 2 at ¶9.) Therefore, Plaintiff’s request for an in-court hearing shall be denied.

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III.

ELIGIBILITY TO PROCEED IN FORMA PAUPERIS

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that “[i]n

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no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the

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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

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upon which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.”

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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g)

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and is precluded from proceeding in forma pauperis unless Plaintiff is, at the time the complaint is filed,

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under imminent danger of serious physical injury.1

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Among the dismissals suffered by Plaintiff that count as strikes under 1915(g) are case numbers 2:98-cv-00118-LKK-DAD-PC
(ED Cal.) Moten v. Renwick, et al. (dismissed on 06/12/2001 for failure to state a claim); 3:04-cv-01891-L-JMA (SD Cal.) Moten v.
Giurbino (dismissed on 11/24/2004 for failure to state a claim); and 2:03-cv-01729-GEB-DAD-PC (ED Cal.) Moten v. Gomez, et al.
(dismissed on 09/19/2006 as frivolous and for failure to state a claim).

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The Court has reviewed Plaintiff’s Complaint and finds that Plaintiff does not meet the imminent

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danger exception.2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff’s Complaint

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is based on allegations that the hearing on his Rules Violation Report was not conducted fairly; that he

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is being harassed for his work on the Men’s Advisory Council; that he was forced to submit to an illegal

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strip search; and that he is being retaliated against.3 Plaintiff may not proceed in forma pauperis in this

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action, and must submit the appropriate filing fee in order to proceed with this action. Therefore,

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Plaintiff’s application to proceed in forma pauperis shall be denied, and this action shall be dismissed,

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without prejudice to refiling with the submission of the $350.00 filing fee in full.

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IV.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for an in-court hearing is DENIED;

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2.

Pursuant to 28 U.S.C. § 1915(g), the Court finds that Plaintiff is ineligible to proceed in

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forma pauperis in this action;
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This action is DISMISSED, without prejudice to refiling with the submission of the
$350.00 filing fee in full; and

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The Clerk is directed to CLOSE this case.

IT IS SO ORDERED.

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Dated:
0m8i78

February 16, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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The Court expresses no opinion on the merits of Plaintiff’s claims.

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The Complaint is devoid of any showing that Plaintiff was under imminent danger of serious physical injury at the
time he filed the Complaint. Id.

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