O'Neal v. Rush et al

Filing 7

ORDER DENYING 2 Motion to Proceed IFP and DISMISSING Action, without Prejudice to Refiling with Submission of $400.00 Filing Fee in Full; ORDER for Clerk to CLOSE CASE signed by District Judge Anthony W. Ishii on 8/26/2016. 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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GLENN DAVID O’NEAL,

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Plaintiff,

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vs.

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D. RUSH, et al.,

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Defendants.

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1:16-cv-00675-AWI-EPG-PC
ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION,
WITHOUT PREJUDICE TO REFILING
WITH SUBMISSION OF $400.00
FILING FEE IN FULL
(ECF Nos. 1, 2.)
ORDER FOR CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Glenn David O’Neal (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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

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action on May 13, 2016, together with an application to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915. (ECF Nos. 1, 2.)

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II.

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

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

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that A[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has,

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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action

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or 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.@

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III.

ANALYSIS

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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. '

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1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time

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the Complaint was filed, under imminent danger of serious physical injury. The Court has

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found evidence on the court record of three 1915(g) “strikes” against Plaintiff, which were all

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entered before this action was brought by Plaintiff on May 13, 2016.1 The first is case 5:13-cv-

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00176-UA-MAN (O’Neal v. Reovan, et al.) (CACD), which was dismissed on February 14,

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2013, for failure to state a claim. The second is case 13-55523 (O’Neal v. Reovan, et al.) (9th

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Cir.), which was dismissed on June 21, 2013, as frivolous. The third is case 1:13-cv-02073-

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SKO (O’Neal v. Brimage, et al.) (EDCA), which was dismissed on February 20, 2015, for

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failure to state a claim.

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The Court has reviewed Plaintiff=s Complaint for this action and finds that Plaintiff does

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not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th

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Cir. 2007). Plaintiff argues that he is in imminent danger because prison officials have refused

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to provide him with a Kosher or vegetarian diet meal for seven months, causing him to lose

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fifty pounds.

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Plaintiff alleges that before he converted to Judaism, when he was incarcerated at

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California State Prison-Sacramento (CSP-SAC), he was approved as a Christian to receive

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vegetarian meals through the Religious Diet Program (RDP). He began receiving a vegetarian

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diet on June 19, 2015. On October 28, 2015, Plaintiff was transferred to California State

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Prison-Corcoran (CSP-COR). For seven months, prison officials at CSP-COR have denied

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Plaintiff vegetarian meals because they refuse to recognize his RD card as valid. Plaintiff

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alleges that he converted to Judaism and holds sincere beliefs. However, the prison Rabbi

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denied Plaintiff’s request for a Jewish Kosher diet, based on the Rabbi’s misinterpretation of

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The Court has examined the orders dismissing the three cases and finds that they constitute “strikes”
within the meaning of § 1915(g).
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the religious diet agreement form which states in part, “an inmate ‘may’ change his religious

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diet no more than once a year.” (ECF No. 1 at 4.) Plaintiff alleges that he has not changed

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diets.

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Because of the prison’s refusal to provide him a religious vegetarian diet, Plaintiff has

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lost 50 pounds and suffers from hunger pangs, weakness, fatigue, lack of energy, and

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depression. Plaintiff is indigent and cannot afford to purchase his own Kosher or vegetarian

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meals from the prison canteen.

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Plaintiff’s statements do not support the existence of an imminent danger of serious

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physical injury when Plaintiff commenced this action. Andrews, 493 F.3d at 1053 (“[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.”); e.g., Mateo v. Vosbrink, 2006 WL 2038499, at *2

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(N.D.Fla. July 18, 2006) (finding no imminent injury where plaintiff had not received requested

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Jewish dietary accommodation and had foregone meals and parts of meals causing constant

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hunger and hunger pangs); see e.g., Sango v. Aramark, No. 1:15-cv-247, 2015 WL 1632670, *3

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(W.D. Mich. Apr. 13, 2015) (“[W]eight loss, standing alone, falls short of establishing serious

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physical injury.”); Sims v. Caruso, No. 1:11–cv–92, 2011 WL 672232 (W.D.Mich., Feb. 18,

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2011) (same); Hernandez v. Ventura County, No. CV 09–7838 GHK, 2010 WL 3603491, *5–6

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(C.D.Cal., Jul. 27, 2010) (finding prisoner’s claims that he was periodically denied full-sized

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fruit, provided sandwiches rather than hot meals, and lost weight did not constitute imminent

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danger of serious physical injury); Sayre v. Waid, 2009 WL 249982, at *3 (N.D.W.Va., Feb.2,

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2009) (finding claim that prison food caused inmate to lose 30 pounds was insufficient to

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demonstrate serious physical injury; “[W]eight loss, in and of itself, is not indicative of a

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serious physical injury [for purposes of section 1915(g) ].”). Unlike the plaintiff in Jensen v.

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Knowles, 621 F.Supp.2d 921 (E.D.Cal. 2008) (daily deprivation of medically prescribed

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diabetic meals constitutes “‘plausible allegation’ of a danger of serious physical harm”), Mr.

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O’Neal does not assert that he has been denied a medically necessary diabetic diet.

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Plaintiff's allegations are not comparable to allegations which other courts have deemed

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plausible and sufficient to come within the “imminent danger” exception. Hernandez, No. CV
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09–7838 GHK, 2010 WL 3603491 at *5, citing Andrews, 493 F.3d at 1057 (claims of

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imminent risk of harm by exposure to hepatitis and HIV satisfy § 1915(g)); Brown v. Johnson,

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387 F.3d 1344, 1350 (11th Cir. 2004) (complaint as a whole alleged imminent danger of

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serious physical injury where defendant’s failure to continue prescribed treatment for plaintiff's

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HIV and hepatitis exposed plaintiff to “‘opportunistic infections, such as pneumonia,

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esophageal candidiasis, salmonella, and wasting syndrome,’ which would cause [plaintiff] to

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die sooner.”); Williams v. Lopez, 2010 WL 2197352, at *1-*2 (E.D.Cal. May 28, 2010)

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(finding imminent danger of serious physical harm where plaintiff alleged that defendant prison

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officers planned to transfer plaintiff to a prison that had “valley fever . . . a life-threatening

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illness to plaintiff, who has HIV,” and that defendants continued to serve plaintiff “an unknown

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poison in his food, with the intent of making Plaintiff ill.”).

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Because he does not allege imminent danger of serious physical injury, Plaintiff may

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not proceed in this action without concurrent payment of the $400.00 filing fee. This action is

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DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g) for Plaintiff's failure to submit

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a concurrent filing fee. If Plaintiff wishes to reassert his claims in a new case, subject to the

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limitations discussed below, he must concurrently pay the filing fee.

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IV.

CONCLUSION

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1.

Plaintiff's in forma pauperis application is DENIED;

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2.

Plaintiff's Complaint and this action are DISMISSED pursuant to 28 U.S.C. §

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1915(g), without prejudice to Plaintiff filing a new case accompanied by the full

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$400.00 filing fee; and

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3.

The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated: August 26, 2016
SENIOR DISTRICT JUDGE

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