Hill v. Katavich et al

Filing 10

ORDER DENYING 2 Motion to Proceed IFP; ORDER ADOPTING 3 FINDINGS AND RECOMMENDATIONS, signed by District Judge Lawrence J. O'Neill on 07/6/15. (30- DAY DEADLINE TO PAY $400.00 FILING FEE)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY L. HILL,

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Case No. 1:15-cv-00631-JLT (PC)
Plaintiff,

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PLAINTIFF'S REQUEST TO PROCEED
IN FORMA PAUPERIS

CDCR, et al.,
(Docs. 2, 3)

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Defendants.

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Plaintiff, Tony L. Hill, is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On April 29, 2015, the Magistrate Judge issued a Findings and Recommendations ("the

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F&R") to deny Plaintiff's motion to proceed in forma pauperis in this action, finding that he was

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barred under 28 U.S.C. §1915(g) since Plaintiff had four strikes prior to the filing of this action

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and that Plaintiff failed to show that he was in imminent danger of serious physical injury at the

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time he filed suit. (Doc. 3.) This was served on Plaintiff and contained notice that objections to

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the F&R were due within thirty days. (Id.) Plaintiff filed objections. (Doc. 4.)

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As was accurately stated in the F&R, prisoners may not bring a civil action under 28

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U.S.C. §1915(g) if he or she has, on three or more prior occasions, while incarcerated or detained,

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brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a

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claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury. Such dismissals are colloquially referred to as "strikes." As also accurately
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noted in the F&R, Plaintiff had four strikes1 under section 1915(g) prior to filing this action.

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Thus, Plaintiff may only proceed under section 1915(g) if he meets the imminent danger of

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serious physical injury exception at the time he filed the Complaint.
The Ninth Circuit has stated that "requiring a prisoner to 'allege [ ] an ongoing danger' . . .

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is the most sensible way to interpret the imminency requirement." Andrews v. Cervantes, 493

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F.3d 1047, 1056 (9th Cir.2007), citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.2003).

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Andrews held that the imminent danger faced by the prisoner need not be limited to the time

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frame of the filing of the complaint, but may be satisfied by alleging a danger that is ongoing.

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See Andrews at 1053.

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As found in the F&R, Plaintiff failed to show that he was in imminent danger at the time

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he filed the Complaint in his allegations -- false rules violation report having his inmate appeals

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tampered with (Doc. 1, pp. 5-6), being denied access to the canteen and store (Doc. 1, at p. 7);

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being given food trays with flies on them (id.); having his cell door repeatedly banged on by a

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correctional officer (id.); having $40 that his brother sent to him stolen (id., at 7-8); being held at

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a Level IV prison when he should be at a Level III prison (id., at pp. 7, 9); being denied access to

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the law library so he couldn't electronically file a complaint (id., at p. 11); notices not being

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posted as to when the law library would be closed (id., at pp. 12-13); and having his inmate

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appeals wrongly handled/denied (id., at p. 14). None of these allegations amount to Plaintiff

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being under an imminent danger at the time he filed the Complaint.

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Plaintiff argues in his objections that Warden Katavich had Correctional Officers

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Bienvenides and Reyes "try to kill plaintiff by injecting poison into an apple which Plaintiff bit

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into and almost died." (Doc. 4, 2:16-19.) In the Complaint, Plaintiff does allege that he bit into
an apple that Correctional Officer Bienvenides gave him which he noticed had a small dark spot
on it and that he almost died, but that "God healed" him and "took death away" from him and that

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See Hill v. White, et al., Case Number 1:13-cv-01275-AWI-DLB (PC); Hill v. Williams, et al., 2:98-cv-07173-LGBCT (C.D. Cal.) (dismissed September 15, 1998 for failure to state a claim); Hill v. Wallace, et al., 2:99-cv-06406ABC-CT (C.D. Cal.) (dismissed July 7, 1999 for failure to state a claim; Hill v. Torrance Police Dept., et al., 2:11cv-08794-UA-CW (C.D. Cal.) (dismissed July 20, 2012 for failure to state a claim); and Hill v. Horton, et al., 2:13cv-00805-UA-CW (C.D. Cal.) (dismissed February 28, 2013 for failure to state a claim).

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a lieutenant brought three other officers to the building that evening to watch him to see if the

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poisoned apple would kill him. (Doc. 1, p. 6.) On that same page, Plaintiff alleges four days

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later, Correctional Officer Reyes gave him an apple with a small dark spot on it and he knew it

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had been injected with poison too. (Id.) However, the fact that Plaintiff believed he was

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poisoned because the apple he bit into had a spot on it, and that God healed him apparently

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without any effort by medical staff to cure him, relies at the very most only on a sheer possibility

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that these correctional officers acted unlawfully and need not be accepted since not facially

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plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp v. Twombly, 550

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U.S. 544, 556, 557, 570 (2007). Further, for arguments sake only, even if these allegations

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against Officers Bienvenides and Reyes showed imminent danger, they are not related to any of

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Plaintiff's other allegations upon which to allow him to proceed in forma pauperis in this action.

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See Fed.R.Civ.P. 18.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the F&R to

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be supported by the record and by proper analysis. Plaintiff does not satisfy the imminent danger

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exception to section 1915(g). See Andrews, 493 F.3d at 1055-56. Thus, Plaintiff's motion to be

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granted in forma pauperis status is denied and he must submit the appropriate filing fee in order

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to proceed with this action.
Accordingly, IT IS HEREBY ORDERED that:

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full;

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2.

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3.

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Within thirty days from the date of service of this order, Plaintiff is required to pay
the $400.00 filing fee for this action in full; and

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Plaintiff's motion to proceed in forma pauperis in this action, filed on April 21,
2015 (Doc. 2), is denied;

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The Finding and Recommendation, filed April 29, 2015 (Doc. 3), is adopted in

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Plaintiff’s failure to comply with this order shall result in the dismissal of this
action.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 6, 2015

UNITED STATES DISTRICT JUDGE

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