McCoy v. Holguin et al

Filing 56

ORDER Granting 45 Request for Judicial Notice; FINDINGS and RECOMMENDATIONS to Revoke Plaintiff's In Forma Pauperis Status and Direct Plaintiff to Pay Filing Fee in Full re 44 , signed by Magistrate Judge Michael J. Seng on 3/6/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAKEITH L. MCCOY,
Plaintiff,

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v.
A. HOLGUIN, et al.,

1:15-cv-00768-DAD-MJS (PC)
ORDER GRANTING REQUEST FOR
JUDICIAL NOTICE; AND
FINDINGS AND RECOMMENDATIONS
TO
1. REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS, AND

Defendants.

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2. DIRECT PLAINTIFF TO PAY FILING
FEE IN FULL

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(ECF Nos. 44, 45)

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FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on Plaintiff’s Second

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Amended Complaint asserting excessive force and failure to protect claims against 19

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Defendants following a March 2015 assault. On July 14, 2015, Plaintiff was granted

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leave to proceed in forma pauperis. (ECF No. 9.)

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Now pending is Defendants’ January 9, 2017, motion to revoke in forma pauperis

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status. (ECF No. 44.) Plaintiff opposes the motion. For the reasons set forth below, the

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undersigned will recommend that Plaintiff’s in forma pauperis status be revoked and he

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be directed to pay the filing fee in full.

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Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a

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prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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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

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is under imminent danger of serious physical injury.”

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Plaintiff initiated this action on May 20, 2015. Before that date, Plaintiff’s

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complaints in the following cases were dismissed for failure to state a claim and

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judgment was entered accordingly: McCoy v. County of Riverside, 2:13-cv-8674-RGK-

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DFM (C.D. Cal.) (dismissed on July 31, 2014, for failure to state a claim); McCoy v.

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Curiel, 2:14-cv-0517-RGK-DFM (C.D. Cal.) (dismissed on January 9, 2015, for failure to

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state a claim); McCoy v. County of Los Angeles, 2:14-cv-7262 UA-DFM (C.D. Cal.)

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(dismissed on September 25, 2014, for failure to state a claim); and McCoy v. Cacciola,

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1:13-cv-0995-SKO (E.D. Cal.) (dismissed on December 18, 2014, for failure to state a

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claim). Since Plaintiff does not argue that these cases do not constitute a strike, the

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undersigned finds that he is a “three-striker” within the meaning of Section 1915(g), and

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the only question remaining is whether Plaintiff was under imminent danger of serious

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physical injury at the time he filed this action.

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The imminent danger exception applies if “the complaint makes a plausible

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allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time

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of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit

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interprets “imminent danger” to mean “ongoing danger,” meaning the prisoner must

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allege that prison officials have continued with a practice that has injured him or others

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similarly situated in the past. Id. at 1056-57.

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A prisoner seeking to invoke the imminent danger exception in § 1915(g) must
make specific, credible allegations of imminent danger of serious physical harm. McNeil
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v. U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006) (citing Kinnell v. Graves, 265 F.3d

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1125, 1127-28 (10th Cir. 2001), and White v. Colorado, 157 F.3d 1226, 1232 (10th Cir.

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1998)). Vague, speculative, and non-specific allegations are insufficient. See Pauline v.

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Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009) (plaintiff's vague and conclusory

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allegations of possible future harm to himself or others are insufficient to trigger the

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“imminent danger of serious physical injury” exception to dismissal under § 1915(g));

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Cooper v. Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006) (plaintiff's allegations that

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he will commit suicide, or that he has already attempted suicide and will do so again, are

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insufficient to show imminent danger); Luedtke v. Bertrand, 32 F.Supp.2d 1074, 1077

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(E.D. Wis. 1999) (“[p]laintiff's vague allegation of a conspiracy among the defendants to

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beat, assault, injure, harass and retaliate against him are not enough. These allegations

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are insufficient and lack the specificity necessary to show an imminent threat of serious

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physical injury.”).

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Plaintiff sets forth three grounds in opposition to Defendants’ motion: Defendants

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have not met their burden to show that the IFP status should be revoked, the “imminent

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danger” exception is applicable to the facts of this case, and revocation of the IFP

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cannot apply to Plaintiff. Plaintiff does not elaborate on these grounds other than to

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argue that the imminent danger exception applies to him because he continues to suffer

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from injuries from the assault. He also asserts that denying him this exception on the

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ground that the assault occurred in the past would be “a cruel joke on prisoners.” See

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Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

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

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the imminent danger exception. This action is directed at 19 Defendants who are alleged

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to have used excessive force and/or failed to intervene during an assault that occurred in

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March 2015, nearly two and one-half months before he initiated this case. Plaintiff’s

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pleadings allege neither an ongoing harm nor an imminent threat of serious physical

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injury. His claim that he continues to suffer from his past injuries is insufficient to satisfy

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the requirements of this exception.
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Accordingly, IT IS HEREBY ORDERED that Defendants’ motion for judicial notice
(ECF No. 45) is GRANTED; and

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IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to revoke Plaintiff’s in forma pauperis status (ECF No. 44)
be GRANTED;

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2. Plaintiff’s in forma pauperis status be REVOKED; and

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3. Plaintiff be directed to pay the $400 filing fee in this action within fourteen days
from the adoption of these findings and recommendations.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.

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§ 636(b)(1). Within fourteen (14) days after being served with the findings and

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recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

March 6, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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