Bontemps v. Perez et al

Filing 12

ORDER REVOKING Plaintiff's In Forma Pauperis Status and Requiring Plaintiff to Pay Filing Fee in Full, re 10 , 11 , signed by Magistrate Judge Erica P. Grosjean on 1/24/17. Filing Fee Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,
Plaintiff,

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v.

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R. PEREZ and W. SILLAS,

ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS AND
REQUIRING PLAINTIFF TO PAY
FILING FEE IN FULL
(ECF NO. 11)

Defendants.

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1:16-cv-01220-EPG (PC)

I.

BACKGROUND
Gregory C. Bontemps (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed the

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Complaint commencing this action on August 8, 2016. (ECF No. 1). On September 12, 2016,

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Plaintiff filed an application to proceed in forma pauperis (ECF No. 10), which the Court

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granted (ECF No. 11).

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On August 26, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c) (ECF No. 7), and no other parties have made an appearance.

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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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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Plaintiff initiated this action on August 8, 2016. Prior to this date, Plaintiff had been

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involved with two different cases that had denied or revoked Plaintiff’s in forma pauperis

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status:

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1.

Bontemps v. Sotak, No. 2:09-CV-2115-MCE-EFB, 2015 WL 812360 (E.D.

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Cal. Feb. 25, 2015), report and recommendation adopted, No. 2:09-CV-2115-

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MCE, 2015 WL 1469870 (E.D. Cal. Mar. 30, 2015); and

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2.

Bontemps v. Harper, No. 2:13-cv-00506-MCE-EFB, 2016 WL 1339577

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(E.D. Cal. Apr. 5, 2016), report and recommendation adopted, No. 2:13-cv-

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00506-MCE-EFB, 2016 WL 3135840 (E.D. Cal. June 2, 2016).

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These two decisions examined Plaintiff’s prior case filings, and both Courts concluded

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that Plaintiff had three or more cases that constituted strikes under the “three-strike” rule in 28

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U.S.C. § 1915(g). Upon carefully reviewing these two decisions, the Court finds that the

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analysis in Sotak and Harper is properly supported by existing law. Thus, the Court agrees

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with and hereby adopts the analysis and conclusions. Therefore, the review of the actions filed

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by Plaintiff reveals that Plaintiff is subject to the “three-strike” rule in 28 U.S.C. ' 1915(g) and

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is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint

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was filed, under imminent danger of serious physical injury.

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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 reviewed Plaintiff=s Complaint and finds that Plaintiff does not meet the

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imminent danger exception. In the Complaint Plaintiff alleges that Defendants, correctional

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officers Perez and Sillas, packed his Americans with Disabilities Act (“ADA”) appliances at a

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time he needed them. Based on the Complaint, it appears that Plaintiff got his ADA appliances

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back before filing suit. Plaintiff does not allege that he was under imminent danger of serious

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bodily harm when he filed this case.

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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 in forma pauperis status (ECF No. 11) will be revoked, and

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

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Failure to follow the directives in this order will result in dismissal of the case.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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11) is REVOKED;
2.

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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff=s in forma pauperis status (ECF No.

Plaintiff shall pay the $400.00 filing fee in full within 30 days of the date of
service of this order in order to proceed with this action; and

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Failure to pay the filing fee within 30 days of the date of service of this order
will result in dismissal of this action.

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IT IS SO ORDERED.
Dated:

January 24, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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