Turner v. McCall et al

Filing 19

ORDER DENYING Appications to Proceed In Forma Pauperis and DISMISSING Action without Prejudice to Refiling with Submission of $400.00 Filing Fee in Full; ORDER for Clerk to CLOSE CASE signed by District Judge Lawrence J. O'Neill on 10/29/2013. CASE CLOSED. (Sant Agata, S)

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EASTERN DISTRICT OF CALIFORNIA

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) 1:13-cv-01611-LJO-BAM (PC)
)
Plaintiff,
) ORDER DENYING APPLICATIONS TO
) PROCEED IN FORMA PAUPERIS AND
v.
) DISMISSING ACTION WITHOUT
) PREJUDICE TO REFILING WITH
J. McCALL, et al.,
) SUBMISSION OF $400.00 FILING FEE IN
) FULL
Defendants.
)
) (ECF Nos. 1, 2, 17)
)
) ORDER FOR CLERK TO CLOSE CASE
)
)
______________________________________________________________________________
I.
BACKGROUND
ANTHONY RECARDO G. TURNER,

Plaintiff Anthony Recardo G. Turner (“Plaintiff”), inmate number G-27511, is a state

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prisoner proceeding pro se. Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on

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July 23, 2013, in the United States District Court for the Northern District of California. On

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October 1, 2013, the action was transferred to the Fresno Division of the Eastern District of

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California. Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915.

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II.

28 U.S.C. § 1915(g)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) 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

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or more prior occasions, while incarcerated or detained in any facility, brought an action or

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appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
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malicious, 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).

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III.

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A review of the actions filed by Plaintiff reveals that he was subject to 28 U.S.C. §

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1915(g) at the time he filed this case on July 23, 2013. The Court takes judicial notice of Turner

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v. Cates, et al., 2:11-cv-01744-CKD, in which Plaintiff was found to be subject to 1915(g) prior

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to June 29, 2011. In that action, the court found Plaintiff had at least three cases that qualified as

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strikes: CIV-S-08-2087 EFB P; Ninth Circuit Case No. 11-15044; and CIV-S-09-3326 FCD

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DAD P. The Court also takes judicial notice of three additional cases filed in this district that

DISCUSSION

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qualify as strikes and that were all entered before Plaintiff filed this action: (1) Turner v.

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Thomas, et al., 2:10-cv-02369-MCE-EFB (dismissing action with prejudice for failure to

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prosecute and failure to state a claim on July 9, 2012); (2) Turner v. Gibson, et al., 1:11-cv-

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01395-GBC (dismissing action with prejudice for failure to state a claim on April 13, 2012); and

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(3) Turner v. Hubbard, et al., 1:11-cv-01670-DLB (dismissing action for failure to obey court

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order and failure to state a claim on November 21, 2012).

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Plaintiff therefore is precluded from proceeding in forma pauperis in this action unless he

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

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determination of whether Plaintiff is under imminent danger of serious physical injury is made

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based on the conditions at the time the complaint is filed, and the allegation of imminent danger

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

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The Court has reviewed Plaintiff’s complaint and finds that he does not meet the

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imminent danger exception. Plaintiff has alleged past incidents of alleged harm, but has not

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plausibly alleged that he was under imminent danger of serious physical injury at the time he

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filed his complaint. Plaintiff’s general assertions that he continues to “suffer serious physical

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injuries” is not sufficient. (ECF No. 1, pp. 8, 17.) Further, Plaintiff’s allegations that his mere

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placement in the Security Housing Unit (“SHU”) with violent prisoners jeopardizes his life,

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safety and security and he can be “set up and killed” are nothing more than speculation. (ECF

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No. 1, pp. 11, 16.) Plaintiff has not alleged any facts identifying a specific, present threat to his
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life or safety at the time of filing his complaint. Accordingly, Plaintiff may not proceed in forma

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

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IV.

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Based on the foregoing, it is HEREBY ORDERED as follows:

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1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma pauperis

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CONCLUSION AND ORDER

in this action is DENIED;

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2. This action is DISMISSED without prejudice to refiling with the submission of the

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$400.00 filing fee in full; and

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3. The Clerk of the Court is directed to CLOSE this case.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

October 29, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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