Gonzales v. Podsakoff, et al.

Filing 25

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and DISCHARGING Order to Show Cause Regarding Plaintiff's In Forma Pauperis Status; ORDER GRANTING Plaintiff's Motions for Copies of Documents, signed by Magistrate Judge Sheila K. Oberto on 5/31/16. Thirty Day Deadline. (Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 Case No. 1:15-cv-00924-SKO (PC) 9 10 MICHAEL GONZALES, Plaintiff, 11 12 13 14 15 v. PODSAKOFF, et al., Defendants. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND DISCHARGING ORDER TO SHOW CAUSE REGARDING PLAINTIFF’S IN FORMA PAUPERIS STATUS (Docs. 20-23) ORDER GRANTING PLAINTIFF’S MOTIONS FOR COPIES OF DOCUMENTS (Docs. 7, 8, 18) THIRTY (30) DAY DEADLINE 16 17 18 I. INTRODUCTION Plaintiff, Michael Gonzales, is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint in this action 20 on June 18, 2015. Plaintiff filed an application to proceed in forma pauperis with the Complaint. 21 (Doc. 2.) This application was granted later that month even though Plaintiff had three strikes for 22 purposes of 28 U.S.C. § 1915 because it appeared that Plaintiff’s allegations may suffice to show 23 imminent danger of serious physical injury. (Docs. 3, 5.) 24 Upon screening of Plaintiff’s Complaint, however, it was determined that his allegations 25 which state cognizable claims fail to show an imminent danger of serious physical injury to be 26 excepted from the three strikes provision of 28 U.S.C. § 1915. Thus, two orders issued on April 27 25, 2016. The first order screened the Complaint and required Plaintiff to either file a first 28 amended complaint, or to submit a notice indicating he was willing to proceed only on the claims 1 1 which were found to be cognizable and related for purposes of Rule 18 of the Federal Rules of 2 Civil Procedure.1 (Doc. 20.) Plaintiff’s cognizable and related claims were found to be 3 retaliation and interference with Plaintiff’s mail against Defendants A. Podsakoff and L. 4 Lawrence and an excessive force claim against Defendant A. Podsakoff for slamming Plaintiff’s 5 wrist in the food port on April 9, 2014. (Id.) Because neither of these claims amounted to an 6 imminent danger of serious injury, an order to show cause (OSC) issued requiring Plaintiff to 7 show why his in forma pauperis status should not be revoked. (Doc. 21.) II. ANALYSIS and DISCUSSION 8 9 A. 10 As stated in the OSC, 28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no 11 12 13 14 15 16 17 Plaintiff May Only Proceed In Forma Pauperis If He Is Able to Show That He was in Imminent Danger of Serious Physical Injury When He Filed This Action event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff had three strikes before he filed this action. (Doc. 21.) Thus to be allowed to proceed in forma pauperis, he must state allegations which show that he was in imminent danger of serious physical injury and amount to a cognizable 18 claim under 42 U.S.C. § 1983. 19 Plaintiff filed two documents on May 25, 2016. The first document is Plaintiff’s notice 20 that he does not desire to file an amended complaint and is willing to proceed on the claims found 21 cognizable in the screening order. (Doc. 22.) If Plaintiff proceeds on the claims previously found 22 cognizable, his in forma pauperis status will be revoked and he will be required to pay the filing 23 fee in full. The second document Plaintiff filed on May 25, 2016, is his response to the OSC 24 25 26 which suggests that he may be able to state a cognizable claim showing he was in imminent danger of serious bodily injury at the time he filed this action based on the tainting of his food with “antipsychotic medication” which caused him to experience “akinesia and tartive 27 1 28 The Federal Rules of Civil Procedure will hereinafter be referred to as ARule *.@ Any reference to other statutory authorities shall so indicate. 2 1 dyskinesia.” Since Plaintiff may be able to state cognizable claims which show that he was under 2 imminent danger of serious physical injury, he is granted opportunity to file a first amended 3 complaint. Rodriguez v. Steck, 795 F.3d 1187 (9th Cir. 2015). 4 Thus, the OSC is discharged and Plaintiff is granted the option, in the next thirty days to 5 either: (1) file a notice of his desire to proceed on the claims in the Complaint that were 6 previously found cognizable (see Doc. 20) in which case his in forma pauperis status will be 7 revoked and this action will be dismissed without prejudice to his re-filing upon prepayment of 8 the full filing fee; or (2) file a First Amended Complaint, limited to the instances when his food 9 was tainted at California State Prison (“CSP-Cor”) in Corcoran, California, as well any related 10 claims which do not violate Rule 18. Plaintiff is provided a copy of the order screening his 11 Complaint (Doc. 20) and the OSC (Doc. 21) for applicable standards. 12 13 B. Plaintiff’s Motions For Copies of Documents Are Granted Plaintiff has filed several motions requesting copies of documents he has filed in this 14 action indicating that prison staff at CSP-Cor denied him copies for various reasons. (See Docs. 15 7, 8, 18.) Plaintiff has since been transferred to the California Correctional Institute (“CCI”) in 16 Tehachapi, California. Though litigants must generally pay for copies of documents, Plaintiff’s 17 requests will be granted gratis – on this one occasion. Plaintiff will hopefully no longer have 18 issues with obtaining copies of documents since he is no longer at CSP-Cor. Plaintiff is 19 cautioned, however, that such copies will not be provided in the future without remuneration. 20 21 III. ORDER Accordingly, it is HEREBY ORDERD that: 22 1. The Order to Show Cause that issued on April 25, 2016, is DISCHARGED; 23 2. Within thirty (30) days of the date of service of this order, Plaintiff must: 24 a. file a notice of his desire to proceed on the claims in the Complaint that were 25 previously found cognizable (see Doc. 20) which will result in revocation of his 26 in forma pauperis status and the dismissal of this action without prejudice to his 27 re-filing upon prepayment of the full filing fee; 28 b. file a First Amended Complaint, limited to the instances when his food was 3 1 tainted at CSP-Cor and any claims which do not violate Rule 18; or 2 c. if he no longer desires to pursue this action, he must file a notice of 3 voluntary dismissal; 4 3. Plaintiff’s motions for copies of his filings in this action, filed on August 31, 2015, 5 (Docs. 7, 8) and January 6, 2018, (Doc. 18) are GRANTED; 6 4. The Clerk’s Office is directed to forward copies of the Complaint (Doc. 1), 7 Plaintiff’s motion for temporary restraining order (Doc. 9), Plaintiff’s motion of 8 petition for injunctional court order and temporary restraining order (Doc. 17), the 9 order which screened the Complaint (Doc. 20), and the order to show cause why in 10 forma pauperis status should not be revoked (Doc. 21); and 11 5. Plaintiff’s failure to comply with this order will result in dismissal of this action 12 for both failure to prosecute and failure to obey a court order. 13 IT IS SO ORDERED. 14 15 16 Dated: May 31, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4 .

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