Manago v. Beard et al

Filing 3

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's Application for In Forma Pauperis Be Denied 2 , signed by Magistrate Judge Stanley A. Boone on 3/8/16: 30-Day Objection Deadline; Matter referred to Judge O'Neill. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEWART MANAGO,

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Plaintiff,

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v.
JEFFREY A. BEARD, et al.,
Defendants.

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Case No.: 1:16-cv-00293-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S APPLICATION
FOR IN FORMA PAUPERIS BE DENIED
[ECF No. 2]

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I.

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INTRODUCTION

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On March 3, 2016, Plaintiff Stewart Manago, a state prisoner proceeding pro se, filed this civil

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rights action pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis, 28

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U.S.C. § 1915(a). (ECF Nos. 1 and 2.) However, Plaintiff is subject to section 1915(g) of the statute,

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and he may only proceed in forma pauperis if he has met the imminent danger exception. 28 U.S.C. §

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1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1051-1052 (9th Cir. 2007).

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II.

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LEGAL STANDARD

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The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner

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complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to

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the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related
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screening device which precludes prisoners with three or more “strikes” from proceeding in forma

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pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at

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1050. The statute provides that “[i]n no event shall a prisoner bring a civil action … under this section

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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, 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.” 28 U.S.C. § 1915(g).

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III.

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DISCUSSION
There is no dispute that Plaintiff is subject to section 1915(g).1 The issue is whether Plaintiff

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has met the imminent danger exception, which requires Plaintiff to show that he is under (1) imminent

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danger of (2) serious physical injury and which turns on the conditions he faced at the time he filed

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suit on March 3, 2016. Andrews, 493 F.3d at 1053-1056. Conditions which posed imminent danger

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to Plaintiff at some earlier time are immaterial, as are any subsequent conditions. Id. at 1053. While

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the injury is merely procedural rather than a merits-based review of the claims, the allegations of

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imminent danger must still be plausible. Id. at 1055.

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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. Andrews, 493 F.3d at 1053. Plaintiff’s allegations stem from events of

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which Plaintiff has previously relied on in other actions to avoid the three-strikes bar.2 As in the prior

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action, Plaintiff contends that he participated in an investigation relating to misconduct by a

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correctional officer and was thereafter subjected to retaliation.
Plaintiff presently claims he is subject to imminent danger of serious physical injury relating to

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actions dating back to January 7, 2014, in failing to protect him. Plaintiff contends that he was

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The Court takes judicial notice of case numbers 3:90-cv-20256-MHP Manago v. Myers (N.D. Cal.) (dismissed Oct. 9,
1991 for failure to state a claim); 3:94-cv-01528-MHP Manago v. Marshall (N.D. Cal.) (dismissed Mar. 25, 1998 for
failure to state a claim), affirmed on appeal, 10 Fed.Appx 540 (9th Cir. 2001); and 1:99-cv-05525-REC-SMS Manago v.
Gulare (E.D. Cal.) (dismissed Mar. 7, 2000 for failure to state a claim).
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See, e.g., Manago v. Cate, et al., case numbers 2:13-cv-00081 GEB AC P; Manago v. Cate, 2:11-cv-2891 AC P; Manago
v. Holland, et al., 13-cv-01523 AWI GSA PC, Manago v. Walsh, et al., 13-cv-01848 AWI BAM PC

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improperly classified as a member of the Black Guerrilla Family prison gang and was improperly

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subjected to double cell occupancy.3 Plaintiff also claims he has been labeled by certain officers as a

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“snitch.” Plaintiff further contends that certain legal property was confiscated and he has been denied

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adequate access to legal property in storage. Plaintiff also vaguely alludes to the denial of mental

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health treatment, but provides no factual support for such claim. All of these events took place in

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2014.
While a threat to Plaintiff’s physical safety is certainly a serious allegation, the complaint does

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not demonstrate that Plaintiff is presently in imminent danger of serious physical injury. Plaintiff’s

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allegations involve speculative claims of threats to his physical safety based on his fear that at some

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future time he will be subjected to harm by a correctional officer or another inmate. Indeed, Plaintiff

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alleges that certain defendants “acted with deliberate indifference to the known and obvious posed

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[sic] by plaintiff, if they ever placed a documented enemy in plaintiff’s cell.” (ECF No. 1 at ¶ 33.)

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Plaintiff’s complaint demonstrates that he is and was housed in the security housing unit and any claim

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that he will be housed with a rival gang member is speculative, at best. Such speculative allegations

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fall short of establishing “imminent danger of serious physical injury.” Andrews, 493 F.3d at 1053

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(“the 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.”)
In sum, Plaintiff’s claims of failure to protect are vague and conclusory and devoid of

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sufficient factual support. There are no allegations that Plaintiff is presently in imminent danger of

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physical harm, and Plaintiff makes no request for relief from imminent danger and requests only

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monetary damages. Accordingly, Plaintiff is ineligible to proceed in forma pauperis in this action.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

Plaintiff’s application to proceed in forma pauperis be DENIED; and

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Plaintiff has previously made similar allegations in Manago v. Cate, et al., Case No. 2:13-cv-00081 GEB AC P (denial of
in forma pauperis status and dismissed for failure to pay the filing fee on May 1, 2013.)

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2.

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Plaintiff be required to pay the $400.00 filing fee within thirty days of service of the
Court’s order adopting these Findings and Recommendations.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (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:

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March 8, 2016
UNITED STATES MAGISTRATE JUDGE

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