Cohea v. Pacillas et al

Filing 10

ORDER revoking In Forma Pauperis Status and directing Plaintiff to pay $400.00 filing fee in full re 9 signed by Magistrate Judge Michael J. Seng on 10/24/2016. (Filing Fee due within 14-Days).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA, et al.,

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Plaintiffs,
v.
A. PACILLAS, et al.,

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Defendants.

CASE No. 1:16-cv-0949-AWI-MJS (PC)
ORDER REVOKING IN FORMA
PAUPERIS STATUS AND DIRECTING
PLAINTIFF TO PAY FILING FEE IN FULL
(ECF NO. 9)
FOURTEEN DAY DEADLINE

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This civil rights action is brought by three Plaintiffs—Danny James Cohea,

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Raymond George Glass, and R.J. Dupree—pursuant to 42 U.S.C. §1983, though only

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Plaintiff Cohea has signed the complaint. See ECF No. 1 at 75; Fed. R. Civ. P. 11(a).

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Additionally, only Plaintiff Cohea moved to proceed in forma pauperis, and his motion

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was granted on September 8, 2016. (See ECF Nos. 6, 9.) The Court has subsequently

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determined, for the reasons discussed below, that Plaintiff Cohea is not entitled to in

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forma pauperis status and therefore must pay the filing fee before this case may proceed

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further.

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

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

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

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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

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prisoner is under imminent danger of serious physical injury.”

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The Court takes judicial notice of the following cases filed by Plaintiff Cohea:

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Cohea v. Bray, 2:97-cv-0366-FCD-DAD (E.D. Cal.) (dismissed on March 24, 1998, for

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failure to state a claim); Cohea v. Access Secure Pak, 3:09-cv-0679-RCJ-RAM (D. Nev.)

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(dismissed on August 3, 2010, for failure to state a claim); and Cohea v. Patzloff, 3:10-

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cv-0437-IEG-RBB (S.D. Cal.) (dismissed on March 2, 2011, for failure to state a claim

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and for failure to comply with the Court’s orders). Plaintiff is thus a “three-striker” within

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the meaning of Section 1915(g), and the only question remaining is whether Plaintiff

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Cohea is under imminent danger of serious physical injury.

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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

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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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The complaint identifies 23 Defendants and asserts numerous violations of

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Plaintiff Cohea’s First and Fourteenth Amendment rights. He alleges that the Defendants

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issued false rule violation reports against him in retaliation for having exercised his First

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Amendment right to file inmate grievances and petition the courts. Those rule violation

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reports were then used by various Defendants, who knew them to be false, to justify a

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series of disciplinary housing transfers into the Administrative Housing Unit and

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eventually the Security Housing Unit. The transfers were retaliation against Plaintiff for

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engaging in First Amendment protected activity and were conducted in a manner that

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deprived Plaintiff of procedural due process rights. Defendants also conducted improper

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cell searches and colluded to violate Plaintiff’s rights.

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Plaintiff’s complaint does not allege a basis for an imminent danger exception.

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Plaintiff alleges that the Defendants have affixed “R” (rape) and “IEX” (indecent

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exposure) suffixes to his inmate records without administrative hearings. Plaintiff

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maintains that the disciplinary reports supporting these designations are falsified and

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that the Defendants are aware that either label can spur violence at the hands of other

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prisoners. Plaintiff has been forced to take a cell-mate. A fellow inmate was murdered

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in-cell under similar conditions and there have been multiple physical assaults.

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Plaintiff’s abstract fear of assault does not constitute an imminent danger.

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Imminent danger of serious physical injury must be a real, present threat, not merely

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speculative or hypothetical. Plaintiff’s allegations do not identify a specific threat; instead

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he argues that he is at risk of harm from any potential cell-mate. “Plaintiff's generalized

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apprehension that he might be a target of attack does not constitute an imminent danger

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at the time of filing the Complaint.” Ellington v. Clark, 2012 WL 466730, *2 (E.D. Cal.

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Feb. 13, 2012) (“child molester” label causing a generalized fear of attack from inmates
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and prison staff did not satisfy the imminent danger requirement).

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Accordingly, IT IS HEREBY ORDERED:

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1. Plaintiff’s in forma pauperis status (ECF No. 9) is REVOKED;

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2. Plaintiff shall pay the $400 filing fee within fourteen (14) days of this Order;

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and
3. Failure to pay the filing fee or otherwise respond to this Order will result in a

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recommendation to dismiss this action.

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IT IS SO ORDERED.
Dated:

October 24, 2016

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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