Danny James Cohea v. Faldon et al

Filing 8

FINDINGS and RECOMMENDATIONS recommending that 6 & 7 Plaintiff's Applications to Proceed In Forma Pauperis be DENIED and Plaintiff be Required to Pay the $400.00 Fililng Fee in Full to Proceed With This Action re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 9/15/2016. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

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Plaintiff,

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vs.
J. FALDON, et al.,

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Defendants.

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1:16-cv-00955-DAD-EPG-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
APPLICATIONS TO PROCEED IN
FORMA PAUPERIS BE DENIED UNDER
28 U.S.C. § 1915(g), AND PLAINTIFF BE
REQUIRED TO PAY FILING FEE IN
FULL
(ECF Nos. 1, 6, 7.)
OBJECTIONS DUE WITHIN 30 DAYS

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I.

BACKGROUND

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Danny James Cohea, Jr. (“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 July 5, 2016. (ECF No. 1.) On July 25, 2016 and August 3, 2016, Plaintiff filed

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applications to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 6, 7.)

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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 “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner

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

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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

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prisoner is 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 July 5, 2016.1 The Court takes judicial

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notice of these cases: (1) 2:97-cv-0366-FCD-DAD Cohea v. Bray (E.D.Cal.) (dismissed on

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March 3, 1998, for failure to state a claim); (2) 3:09-cv-0679-RCJ-RAM Cohea v. Access

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Secure Pak (D.Nev.) (dismissed on August 3, 2010, for failure to state a claim); and (3) 3:10-

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cv-0437-IEG-RBB Cohea v. Patzloff (S.D.Cal.) (dismissed on March 2, 2011, for failure to

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state a claim and for failure to comply with the Court’s orders).

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The availability of the imminent danger exception turns on the conditions a prisoner

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faced at the time the complaint was filed, not at some earlier or later time. See Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less

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obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057

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n.11. Imminent danger of serious physical injury must be a real, present threat, not merely

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speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide

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“specific fact allegations of ongoing serious physical injury, or a pattern of misconduct

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evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d

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1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient.

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White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the “imminent danger”

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exception is available “for genuine emergencies,” where “time is pressing” and “a threat ... is

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

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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 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, 493 F.3d at 1053. In the Complaint,

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Plaintiff describes incidents occurring between 2008 and 2013, alleging that he was wrongfully

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housed in the SHU, unfairly accused of refusing to cell with other inmates, subject to hearings

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without due process, and had his property confiscated, causing pending cases to be dismissed.

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Plaintiff brings claims for denial of access to courts, retaliation, violation of due process,

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discrimination, denial of access to property, denial of access to law library, false accusations of

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Rules Violations, interference with his prison grievances, and an unfair double-cell policy. In a

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section of the Complaint entitled “Cohea’s Pleading Under Imminent Danger of Serious

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Physical Injury,” Plaintiff claims that he is at risk of violence against him because he is labeled

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as a sex offender with suffixes “R” (for rapist) and “IEX” (for exhibitionist/indecent exposure)

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as part of his prison classification, and these suffixes are looked down upon by some prisoners.

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(ECF No. 1 at 2-3 ¶3.) Plaintiff claims that this type of classification has resulted in at least

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one murder and multiple physical assaults on African-American inmates such as himself,

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especially when inmates are forced to double-cell. However, the Complaint is devoid of any

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factual allegations showing that Plaintiff was under any specific danger of harm at the time he

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filed the Complaint. Plaintiff fails to describe any specific incident, threat, or knowledge upon

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which he bases his assertion that he was under imminent danger of serious bodily harm. These

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facts do not support the existence of an imminent danger of serious physical injury when

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Plaintiff commenced this action.

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between any of his claims in the complaint and his allegation of imminent danger.2 Stine v.

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Federal Bureau of Prisons, 2015 WL 5255377 at *5 (E.D. Cal. Sept. 9, 2015) (A “three strikes”

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prisoner seeking to litigate IFP must allege facts that plausibly show he is in imminent danger,

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and the allegations in the complaint must reveal a nexus between at least one cause of action

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and the imminent danger).

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Moreover, Plaintiff has not shown the requisite nexus

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Plaintiff brings claims in the Complaint for retaliation, due process violations, denial of access
to courts, confiscation of personal property, and racial discrimination. (ECF No. 1.)
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IV.

CONCLUSION AND RECOMMENDATIONS

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The Court finds that under 28 U.S.C. § 1915(g), Plaintiff may not proceed in forma

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pauperis in this action, and must submit the appropriate filing fee in order to proceed with this

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action. Accordingly, Plaintiff’s applications to proceed in forma pauperis should be denied,

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and Plaintiff be required to pay the $400.00 filing fee in full to proceed with this action.

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Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that:

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1.

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Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s applications to proceed in forma
pauperis in this action be DENIED; and

2.

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Plaintiff be required to pay the $400.00 filing fee in full to proceed with this
action.

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These findings and recommendations are 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

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(30) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the Court. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 15, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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