Whitfield v. County of Fresno et al

Filing 12

ORDER signed by Magistrate Judge Michael J. Seng on 5/29/2013 REVOKING PLAINTIFFS IN FORMA PAUPERIS STATUS AND REQUIRING PLAINTIFF TO PAY THE FILING FEE IN FULL WITHIN THIRTY DAYS re 4 . (Filing Deadline: 7/2/2013). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL WHITFIELD,
Plaintiff,

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ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS, AND
REQUIRING PLAINTIFF TO PAY THE
FILING FEE IN FULL WITHIN THIRTY
DAYS

v.

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CASE NO. 1:13-cv-391-AWI-MJS (PC)

COUNTY OF FRESNO, et al.,
Defendants.

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(ECF No. 4)
THIRTY DAY DEADLINE

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Plaintiff Michael Whitfield (“Plaintiff”) is currently detained at the Fresno County Jail

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and is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff initiated this action on March 18, 2013. (ECF No. 1.) Plaintiff alleges that

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Defendants County of Fresno and LaFore have failed to provide Plaintiff proper access to

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law library materials and legal forms. Plaintiff appears to raise a claim under the First

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Amendment of the United States Constitution. Plaintiff seeks monetary relief. The case

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has yet to be screened pursuant to 28 U.S.C. § 1915A.

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I.

THREE STRIKES

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A review of the record of actions filed by Plaintiff in the United States District Court

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reveals that Plaintiff has filed three or more actions that have been dismissed as frivolous,

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malicious, or for failing to state a claim upon which relief may be granted. Section 1915 of

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Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g)

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provides that:
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[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.

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28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions count as strikes under section

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1915(g) requires the Court to conduct a “careful examination of the order dismissing an

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action, and other relevant information,” to determine if, in fact, “the action was dismissed

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because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d

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1113, 1121 (9th Cir. 2005).

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After careful review of the dismissal orders, the Court takes judicial notice that the

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following cases were dismissed for failing to state a claim: 1:02-cv-5613-OWW-SMS,

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Whitfield v. Armendez (E.D.Cal.) (dismissed for failure to state a claim on December 10,

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2002); 1:11-cv-1130-SKO, Whitfield v. Greenman, et al. (E.D. Cal.) (dismissed for failure

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to state a claim on August 13, 2012); 1:11-cv-1375-SKO, Whitfield v. Tulp, et al. (E.D. Cal.)

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(dismissed for failure to state a claim on October 4, 2012); 1:11-cv-1243-DLB, Whitfield v.

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Downs, et al. (E.D. Cal.) (dismissed for failure to state a claim on December 13, 2012).

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It appears to the Court that Plaintiff has three or more strikes and became subject

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to § 1915(g) well before Plaintiff filed this action on March 18, 2013. Therefore, the Court

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finds that Plaintiff should be precluded from proceeding in forma pauperis unless he was,

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at the time the Complaint was filed, under imminent danger of serious physical injury.

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II.

IMMINENT DANGER

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The Court has reviewed Plaintiff's Complaint and, based on the allegations therein,

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

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493 F.3d 1047, 1053 (9th Cir. 2007). “[T]he [imminent danger] exception applies if the

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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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complaint makes a plausible allegation that the prisoner faced an “imminent danger of

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serious physical injury at the time of filing.” Andrews, 493 F.3d at 1055. The Ninth Circuit

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has found that “requiring a prisoner to ‘allege [ ] an ongoing danger’ ... is the most sensible

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way to interpret the imminency requirement.” Id. (quoting Ashley v. Dilworth, 147 F.3d 715,

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717 (8th Cir. 1998). To meet his burden under Section 1915(g), the inmate must provide

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

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evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d

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1048, 1050 (8th Cir. 2003). “Vague or conclusory allegations of harm are insufficient.”

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White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998).

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Plaintiff alleges that in February 2013, Defendant LaFore denied Plaintiff’s requests

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to access research kiosks and for pleading paper. Defendant LaFore allegedly prevented

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Plaintiff from properly representing himself as a pro se litigant. Defendant County of Fresno

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allegedly hired Defendant LaFore and should be held liable for her actions.
At no point does Plaintiff allege that he is currently facing imminent danger. Plaintiff

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does not meet the imminent danger exemption.

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III.

CONCLUSION AND ORDER

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Because it appears that the Plaintiff has on three or more prior occasions brought

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civil actions that have been dismissed as frivolous or for failure to state a claim, the Court

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HEREBY ORDERS that Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date

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of service of this order why the abovementioned actions do not count as “strikes” under 28

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U.S.C. § 1915(g) and why the action should not be dismissed without prejudice to allow

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Plaintiff to re-file with the submission of the $350.00 filing fee.

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IT IS SO ORDERED.

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Dated:
il0i0d

May 29, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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