Harnden v. Smith, et al.

Filing 4

ORDER DISMISSING 1 Action Under 28 U.S.C. 1915(g), 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 3/27/2015. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFF S. HARNDEN,

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Plaintiff,

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vs.
O. SMITH, et al.,

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Defendants.

1:15-cv-00461-LJO-GSA-PC
ORDER DISMISSING ACTION UNDER 28
U.S.C. § 1915(g), WITHOUT PREJUDICE TO
REFILING WITH SUBMISSION OF $400.00
FILING FEE IN FULL
(Doc. 1.)
ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Jeff S. Harnden ("Plaintiff") is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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March 25, 2015. (Doc. 1.) Plaintiff has not paid the $400 filing fee for this action or submitted

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an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

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28 U.S.C. ' 1915 governs proceedings in forma pauperis. Section 1915(g) provides that

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A[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

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under imminent danger of serious physical injury.@ Therefore, if a plaintiff has three qualifying

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dismissals or “strikes,” he may bring a civil action without complete prepayment of the $400.00
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filing fee only if he alleges that he is in imminent danger of serious physical injury. 28 U.S.C.

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§ 1915(g) (emphasis added).

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At least three of Plaintiff’s prior actions were dismissed as frivolous, as malicious

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and/or for failure to state a claim.1 See Harnden v. Scribner, No. CV F-05-1274-LJO-WMW,

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2008 WL 818932 at *1 (E.D. Cal. March 24, 2008) (denying in forma pauperis status based on

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three strikes under § 1915(g) and citing cases)2; Harnden v. Fitzsimmons, No. CV 96-01500-JE

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(D. Or. Dec. 13, 1996) (same); Harnden v. Campbell, No. CV 96-06086-PA (D. Or. Sept. 9,

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1996) (dismissed as frivolous). Therefore, Plaintiff cannot proceed in this case without paying

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the filing fee unless he alleges in the Complaint that he is in imminent danger of serious

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physical injury.

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III.

FAILURE TO ALLEGE IMMINENT DANGER

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The Court has reviewed Plaintiff=s Complaint and finds that Plaintiff does not meet the

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imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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The gravamen of Plaintiff’s Complaint is that on May 30, 2014, he was attacked and stabbed by

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another inmate, Garafalo, who attempted to murder Plaintiff, causing serious injuries. Plaintiff

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claims that defendants (correctional officers) are responsible for the attempted murder because

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they failed to properly document Plaintiff’s known enemies, including Garafalo, instigated the

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attempted murder, and watched, doing nothing, as Plaintiff was attacked. Plaintiff claims there

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is an imminent threat to his life because correctional officers have “complete ability to do it

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again.” Complaint, Doc. 1 at 3:17-18. Plaintiff requests monetary damages as relief.

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In Andrews, the Ninth Circuit adopted the view that Arequiring a prisoner to >allege [ ]

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an ongoing danger' - the standard adopted by the Eighth Circuit - is the most sensible way to

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interpret the imminency requirement.@ Andrews, 493 F.3d at 1056, citing Ashley v. Dilworth,

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147 F.3d 715, 717 (8th Cir. 2003).

Andrews held that the imminent danger faced by the

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Plaintiff has filed more than 40 cases in California and Oregon District Courts.

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The cases identified as dismissed for failure to state a claim are: Harnden v. Ayers, No. C 992138 (N.D. Cal. June 23, 1999); Harnden v. Arcata, No. C 97-4210 CW (N.D. Cal. Jan. 13, 1998); Harnden v. Del
Norte County Sheriff’s Dept., No. C 96-4086 CW (N.D. Cal. May 15, 1997).
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prisoner need not be limited to the time frame of the filing of the complaint, but may be

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satisfied by alleging a danger that is ongoing. Therefore, Plaintiff can satisfy the imminent

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danger exception by alleging an ongoing threat. Where Plaintiff fails, however, is that he fails

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to allege facts indicating that the threat he is under is ongoing within the meaning of Andrews,

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or more than speculative.

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The plaintiff in Andrews alleged facts indicating a particular, present, threat to his life.

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He alleged that he was at risk of contracting HIV and that he had already contracted hepatitis C,

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because of his exposure to other prisoners who had those contagious diseases due to prison

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officials' policy of not screening prisoners for such diseases. In contrast, the threat Plaintiff

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alleges was speculative at the time he commenced this action, based on his fear that he will, at

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some time in the future, be subject to harm by correctional officers or another inmate. These

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facts do not support the existence of an imminent danger of serious physical injury. "[T]he

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availability of the exception turns on the conditions a prisoner faced at the time the complaint

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was filed, not at some earlier or later time." Andrews, 493 F.3d at 1053.

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Moreover, Plaintiff’s allegations in the Complaint are vague and conclusory, without

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alleging specific facts indicating he is under imminent danger. Plaintiff alleges “emmenent

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(sic) threat to my life. CDC records enemies at least 100 then deletes the enemies, to house in a

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prison of their choice in attempt to cause murder [and] attempted murder by an inmate (for)

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cops CDC officers with complete ability to do it again (simply watched).” Complaint at 3:15-

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18. However, Plaintiff fails to allege facts sufficient to demonstrate that he was under actual

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threat of harm at the time he filed the Complaint. While Plaintiff alleges that correctional

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officers and other inmates are capable of causing him harm, he does not allege specific facts

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indicating that he has recently been threatened or has knowledge of a planned attack, or other

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facts supporting his claim of imminent danger. Plaintiff claims that correctional officers want

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him to be assaulted or murdered, but no factual allegations support this. Further, Plaintiff

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makes no request for relief from imminent danger and requests only monetary damages.

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“[A]ssertions of less obviously injurious practices may be rejected as overly speculative

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or fanciful." Andrews, 493 F.3d at 1057 n. 11. Based on the foregoing, the court finds that
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Plaintiff fails to allege the imminent danger of serious physical injury necessary to bypass '

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1915(g)'s restriction on his filing suit without prepayment of the filing fee.

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Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must

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submit the appropriate filing fee in order to proceed with this action. This action shall be

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dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.

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IV.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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with this case;
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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff may not proceed in forma pauperis

This action is DISMISSED, without prejudice to refiling with the submission of
the $400.00 filing fee in full; and

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The Clerk is directed to CLOSE this case.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 27, 2015

UNITED STATES DISTRICT JUDGE

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