Bridgeman v. Hashemi

Filing 8

ORDER signed by Magistrate Judge Michael J. Seng on 10/31/2016 vacating 7 Order; and FINDINGS and RECOMMENDATIONS to deny Plaintiff's Motion to proceed in forma pauperis and direct Plaintiff to pay $400.00 filing fee. Referred to Judge Dale A. Drozd; 14-Day Deadline for Objections to F&R's. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DAYNE BRIDGEMAN,

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Plaintiff,

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CASE No. 1:16-cv-1399-DAD-MJS (PC)
ORDER VACATING OCTOBER 24, 2016,
ORDER (ECF NO. 7); AND

v.
NASTRAN HASHEMI, M.D.,

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Defendant.

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FINDINGS
TO:

AND RECOMMENDATIONS

1. DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS,
AND
2. DIRECT PLAINTIFF TO PAY $400
FILING FEE

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(ECF NO. 2)

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FOURTEEN DAY OBJECTION DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights

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action pursuant to 42 U.S.C. § 1983. Pending is Plaintiff’s motion to proceed in forma

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pauperis.

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Court records reveal that Plaintiff has incurred three or more strikes within the

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meaning of 28 U.S.C. 1915(g).1 Pursuant to that statute, “[i]n no event shall a prisoner

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The Court takes judicial notice of the following three cases from the Southern District of California: (1)
Bridgeman v. San Diego County, et al., Civil Case No. 3:10-cv-2470-WQH-BGS (S.D. Cal. June 21,
2011) (dismissing action for failing to state a claim and failing to comply with a court order); (2) Bridgeman
v. Education Dep’t, et al., Civil Case No. 3:11-cv-0387-JLS-CAB (S.D. Cal. June 24, 2011) (dismissing
First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b);

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

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

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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

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is under imminent danger of serious physical injury.” Thus, the only question remaining

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is whether Plaintiff 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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and (3) Bridgeman v. Records Clerk, et al., Civil Case No. 3:11-cv-0390-IEG (BLM) (S.D. Cal. May 19,
2011) (dismissing First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B) & 1915A(b)).

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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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Plaintiff brings this action against a single Defendant, Dr. Nastran Hashemi, for

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conduct that occurred while he was housed at the California Substance Abuse and

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Treatment Facility in Corcoran, California. Plaintiff contends that on August 8, 2016, he

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was experiencing severe pain all over his body with accompanying “black wart like

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projections,” “excessive growth of horny tissue,” and “black tissue scarring” on his feet,

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shins, arms and face. Dr. Hashemi examined Plaintiff that day and gave him an antibiotic

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cream. Plaintiff accuses Dr. Hashemi of being deliberately indifferent to Plaintiff’s pain

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and skin condition and improperly labeling Plaintiff’s problems as self-inflicted. These

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allegations do not suggest a potential for imminent serious physical harm to Plaintiff.

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Plaintiff is therefore not entitled to proceed in forma pauperis.

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The Court’s October 24, 2016, Order (ECF No. 7) undertook to address directly

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the issue raised herein.

After reflection, the Court elects to refer the matter to the

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assigned District Judge via findings and recommendations. Accordingly, IT IS HEREBY

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ORDERED that the October 24, 2016, Order (ECF No. 7) be VACATED; and

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IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be DENIED;

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and
2. Plaintiff be directed to pay the $400 filing fee within fourteen days from the
adoption of these findings and recommendations.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

October 31, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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