Bell v. Stiles et al

Filing 9

ORDER Denying Plaintiff's Motion For Leave To Proceed In Forma Pauperis And Dismissing Action, Without Prejudice To Refiling With Submission Of $350.00 Filing Fee (ECF No. 8 ), signed by Magistrate Judge Michael J. Seng on 1/29/2013. CASE CLOSED.(Fahrney, E)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
HORACE A. BELL,

CASE NO. 1:12-cv-1925-MJS PC

7
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND DISMISSING ACTION,
WITHOUT PREJUDICE TO REFILING
WITH SUBMISSION OF $350.00 FILING
FEE

8
v.
9
STILES, et al.,
10
Defendants.

(ECF No. 8)

11
/
12
13
14

I.

28 U.S.C. 1915(g)

15

Plaintiff Horace A. Bell, a state prisoner proceeding pro se, filed this civil rights

16

action pursuant to 42 U.S.C. § 1983 on November 2, 2012. He seeks leave to proceed in

17

forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 8.) Plaintiff has consented to

18

Magistrate Judge jurisdiction. (ECF No. 6.)

19

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

20

prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

21

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

22

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

23

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

24

imminent danger of serious physical injury.”1 28 U.S.C. § 1915(g).

25
26
27
28

1

The Court takes judicial notice of case numbers : 2:09-cv-8808-UA-RC PC Bell v. Judge John
Reid (C.D. Cal.) (dismissed 12/23/2009 as frivolous, malicious, and/or failing to state a claim since
Plaintiff’s action was barred by Heck v. Humphrey, 512 U.S. 477 (1994)); 1:10-cv-01762-SKO PC Bell v.
Lopez (E.D. Cal.) (dismissed 08/26/2011 for failure to state a claim); and 1:10-cv-0310-LJO-GSA (E.D.
Cal.) (dismissed 07/12/2012 for failure to state a claim).

1

1

The determination whether Plaintiff is under imminent danger of serious physical

2

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

3

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

4

must be plausible, id. at 1054.

5

II.

Plaintiff’s Allegations

6

Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”) and he

7

alleges claims for relief against Sargent Stiles, facility officer at KVSP, and Officer Ortiz,

8

an officer at KVSP. Plaintiff appears to allege Defendants violated his rights under the

9

First Amendment to the United States Constitution and Americans with Disabilities Act

10

(“ADA”).

11

Plaintiff alleges that in September 2012 Defendant Ortiz threatened Plaintiff after

12

Plaintiff filed an administrative appeal. Defendant Ortiz retaliated against Plaintiff in

13

October 2012 by refusing to provide Plaintiff with an ADA shower. Also that month

14

Defendant Stiles laughed at the smell in Plaintiff’s housing unit.

15

III.

Discussion

16

In his complaint, Plaintiff alleges that he has been retaliated against because he

17

was not provided with an ADA shower after he filed administrative appeals. Plaintiff does

18

not allege that at the time he filed the suit he was facing imminent danger of serious

19

physical injury at KVSP, and his allegations do not indicate he was in imminent danger of

20

serious physical injury when he filed this suit.

21

IV.

Order

22

For the reasons set forth herein, it is ORDERED that Plaintiff is denied leave to

23

proceed in forma pauperis in this action. The action is dismissed, without prejudice to

24

refiling along with submission of the $350.00 filing fee.

25
26

IT IS SO ORDERED.

27

Dated:
ci4d6

January 29, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

28
2