Lazor v. Gipson, et al.

Filing 13

FINDINGS and RECOMMENDATIONS Denying 11 Plaintiff's Application to Proceed In Forma Pauperis and Requiring Payment of Filing Fee In Full Within Twenty-One Days, signed by Magistrate Judge Michael J. Seng on 11/12/13. Referred to Judge O'Neill. Fourteen-Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FREE LAZOR,

Case No. 1:13-cv-01010-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS
AND REQUIRING PAYMENT OF FILING
FEE IN FULL WITHIN TWENTY-ONE
DAYS

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Plaintiff,

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v.

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CONNIE GIPSON, et al.,
(ECF No. 11)
Defendants.

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FOURTEEN-DAY OBJECTION DEADLINE
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Plaintiff is a state prisoner proceeding pro se in a civil rights action filed pursuant to

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42 U.S.C. § 1983. Before the Court is Plaintiff’s application to proceed in forma pauperis.

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(ECF No. 11.) For this case and, for the reasons discussed below, the undersigned

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recommends that Plaintiff not be permitted to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915, and that he be required to pay the $400 filing fee in full within twenty-one

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days of adoption of these findings and recommendations.

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I.

LEGAL STANDARD

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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . .

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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or
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detained in any facility, brought an action or appeal in a court of the United States that was

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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

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

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injury.” 28 U.S.C. § 1915(g).

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II.

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ANALYSIS
The Court begins its analysis by taking judicial notice of two other cases initiated by

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Plaintiff in which he was found to be subject to 28 U.S.C. § 1915(g): Lazor v. Hedgpeth,

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1:07-cv-00410-OWW-SMS PC, (E.D. Cal. 2007), and Lazor v. McCluskey, 1:97-cv-06007-

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REC-DLB PC, (E.D. Cal. 2003). In those cases the Court noticed eleven other district court

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cases filed by Plaintiff that qualified as strikes. These included: (1) Lazor v. Jakobosky,

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2:94-cv-00421-LKK-GGH PC, (E.D. Cal. 1995), (2) Lazor v. White, 2:94-cv-00476-LKK-

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JFM PC, (E.D. Cal. 1994), and (3) Lazor v. Church, 2:94-cv-00629-GEB-GGH PC, (E.D.

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Cal. 1995).

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Review of these actions shows Plaintiff is subject to 28 U.S.C. § 1915(g) and

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precluded from proceeding in forma pauperis unless he shows that he was under imminent

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danger of serious physical harm. The determination of imminent danger is made based on

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the conditions at the time the complaint was filed, and its allegation must be plausible.

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Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007).

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Plaintiff complains he is under imminent danger of physical harm at Corcoran State

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Prison because: he suffers from unspecified respiratory disease and hyper-sensitivity to

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environmental chemicals, the ventilation system in his cell triggers a reaction which causes

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chronic cough, and the cough damages his throat and voice and agitates cellmates so they

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want to attack him. (ECF No. 1.)

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The Court cannot conclude that Plaintiff was under imminent danger of serious

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physical injury at the time he filed his complaint. Plaintiff provides no information to suggest

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his fears of throat and voice injury and attack by inmates are based on anything more than

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paranoia and speculation. Nothing in the materials filed to date corroborate such fears or

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the fact that he has a diagnosed medical condition in need of treatment or accommodation.
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His conjecture and surmise are not bases for an imminent danger finding. See Martin v.

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Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (conclusory assertions insufficient to show

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imminent serious physical injury).

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In short, Plaintiff does not meet the imminent danger exception. See Childs v. Miller,

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713 F.3d 1262, 1267 (10th Cir. 2013) (specific and credible allegations of imminent danger

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of serious physical injury are required); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.

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2003) (the threat or prison condition must be real and proximate). Plaintiff may not proceed

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in forma pauperis and should be required to submit the appropriate filing fee in order to

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proceed with this action.

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III.

Plaintiff is subject to 28 U.S.C. § 1915(g), is not under imminent danger of serious

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CONCLUSIONS AND RECOMMENDATIONS

physical injury, and should be required to pay the $400 filing fee in full.

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The undersigned recommends that:

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Plaintiff’s application to proceed in forma pauperis (ECF No. 11) be denied,

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Plaintiff be required to pay the $400 filing fee in full within twenty-one days of
adoption of these findings and recommendations, and

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3.

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If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of
adoption of this order, this action be dismissed without prejudice.

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These findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” A party may respond to another

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party’s objections by filing a response within fourteen (14) days after being served with a

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copy of that party’s objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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November 12, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

ci4d6

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