Danny James Cohea v. Grannis et al

Filing 13

ORDER Revoking 7 In Forma Pauperis Status and Requiring Plaintiff to Pay Filing Fee Within Fourteen Days or Case will be Dismissed, signed by Magistrate Judge Michael J. Seng on 8/29/13. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

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CASE NO.

Plaintiff,

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1:12-cv-01739-LJO-MJS (PC)

ORDER REVOKING IN FORMA PAUPERIS
STATUS AND REQUIRING PLAINTIFF TO
PAY FILING FEE IN FULL WITHIN
FOURTEEN DAYS OR CASE WILL BE
DISMISSED

v.

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NANCY GRANNIS, et al.,
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Defendants.

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(ECF No. 7)
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Plaintiff Danny James Cohea, a pro se prisoner currently proceeding in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 25, 2012.

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(ECF No. 1.) On November 15, 2012, Plaintiff’s Motion To Proceed In Forma Pauperis

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was granted. (ECF No. 7.) The Court has subsequently determined, for the reasons

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discussed below, that Plaintiff is not entitled to in forma pauperis status and therefore must

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pay the filing fee before this case may proceed further.

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I.

SECTION 1915(g)
Plaintiff is subject to section 1915(g), which provides that “[i]n no event shall a

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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

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court of the United States that was dismissed on the grounds that it is frivolous, malicious,

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or fails to state a claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff previously filed

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three separate actions in Federal Court, each of which was dismissed for failure to state

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a claim.1 Thus, Plaintiff may proceed pro se only if his complaint shows he is in imminent

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danger of serious physical injury.

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The determination whether a plaintiff is under imminent danger of serious physical

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injury is made based on the conditions at the time the complaint is filed, Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), and the allegation of imminent danger

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must be plausible, id. at 1055. There also must be a sufficient nexus between the

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imminent danger a three-strikes prisoner alleges to obtain in forma pauperis status and the

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legal claims asserted in the complaint. See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d

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Cir. 2009.) “In deciding whether such a nexus exists, we will consider (1) whether the

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imminent danger of serious physical injury that a three-strikes litigant alleges is fairly
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traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial

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outcome would redress that injury. The three-strikes litigant must meet both requirements

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in order to proceed [in forma pauperis].” Id. at 298-299 (emphasis in original).

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The Court takes judicial notice of case num bers 2:97-cv-0366-FCD-DAD Cohea v. Bray (E.D.
Cal.) (Dism issed on 03/24/1998 for failure to state a claim ); 3:09-cv-0679-RCJ-RAM Cohea v. Access
Secure Pak (D. Nev.) (Dism issed on 08/03/2010 for failure to state a claim ); and 3:10-cv-0437-IEG-RBB
Cohea v. Patzloff (S.D. Cal.) (Dism issed on 03/02/2011 for failure to state a claim and for failure to com ply
with the Court’s orders).

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II.

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PLAINTIFF’S COMPLAINT
The Complaint identifies sixty-two individual Defendants and asserts numerous

violations of Plaintiff’s First and Fourteenth Amendment rights. Plaintiff alleges that the

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Defendants issued false rule violation reports against him in retaliation for Plaintiff having

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exercised his First Amendment right to file inmate grievances and petition the Courts.

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Those rule violation reports were then used by various Defendants, who knew them to be

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false, to justify a series of disciplinary housing transfers into the Administrative Housing

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Unit and eventually the Security Housing Unit. The transfers were retaliation against

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Plaintiff for engaging in First Amendment protected activity and were conducted in a

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manner that deprived Plaintiff of procedural due process rights.
III.

DISCUSSION
Plaintiff's Complaint does not allege a basis for an imminent danger exception.

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“[T]he [imminent danger] exception applies if the complaint makes a plausible allegation

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that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”

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Andrews, 493 F.3d at 1055. To meet his burden under Section 1915(g), the inmate must

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provide “specific fact allegations of ongoing serious physical injury, or a pattern of

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misconduct evidencing the likelihood of imminent serious physical injury.” Martin v.

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Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

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Plaintiff alleges that the Defendants have affixed “R” (rape) and “IEX” (indecent

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exposure) suffixes to his inmate records without administrative hearings. Plaintiff maintains

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that the disciplinary reports supporting these designations are falsified and that the

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Defendants are aware that either label can spur violence at the hands of other prisoners.

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Plaintiff has been forced to take a cell-mate. A fellow inmate was murdered in-cell under

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similar conditions and there have been multiple physical assaults. (Compl. at 4.)

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Plaintiff’s abstract fear of assault does not constitute an imminent danger. Imminent

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danger of serious physical injury must be a real, present threat, not merely speculative or

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hypothetical. Plaintiff’s allegations do not identify a specific threat; instead he argues that

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he is at risk of harm from any potential cell-mate. “Plaintiff's generalized apprehension that

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he might be a target of attack does not constitute an imminent danger at the time of filing

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the Complaint.” Ellington v. Clark, 2012 WL 466730, *2 (E.D. Cal. Feb. 13, 2012) (“child

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molester” label causing a generalized fear of attack from inmates and prison staff did not

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satisfy the imminent danger requirement).
IV.

ORDER

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For the reasons set forth herein, it is ORDERED that:

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1.

Plaintiff’s in forma pauperis status (ECF No. 7) is revoked;

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2.

Plaintiff shall pay the $400.00 filing fee in full within fourteen (14) days from

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the date of service of this order; and

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3.

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If Plaintiff fails to pay the $400.00 filing fee in full within fourteen days, this
action shall be dismissed, without prejudice.

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IT IS SO ORDERED.

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Dated:
ci4d6

August 29, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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