Blackman v. Mjening et al

Filing 9

ORDER DENYING 2 Application to Proceed In Forma Pauperis Under 28 U.S.C. 1915(g) and DISMISSING ACTION, Without Prejudice to Refiling With Submission of $400.00 Filing Fee in Full signed by Chief Judge Lawrence J. O'Neill on 10/4/2016. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,

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Plaintiff,

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vs.
M. MJENING, et al.,

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Defendants.

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1:16-cv-01421-LJO-GSA-PC
ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS
UNDER 28 U.S.C. § 1915(g) 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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Tony Blackman (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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

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September 16, 2016, in the Sacramento Division of the U. S. District Court, Eastern District of

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California, together with a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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(ECF Nos. 1, 2.) On September 23, 2016, this case was transferred to the Fresno Division of

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the Eastern District of California. (ECF No. 4.).

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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 that

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“[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3

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or more 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 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 five 1915(g) “strikes” against Plaintiff, which were all

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entered before this action was brought by Plaintiff on September 16, 2016.1 The Court takes

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judicial notice of these cases:

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(E.D.Cal.) (dismissed on March 12, 2001, for failure to state a claim); (2) 1:04-cv-06389-AWI-

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NEW (DLB)-P Blackman v. Taxdhal (E.D.Cal.) (dismissed on May 18, 2007, for failure to

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state a claim); (3) 3:05-cv-05390-SI Blackman v. Medina (N.D. Cal.) (dismissed on March 13,

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2006 for failure to state a claim); (4) 3:06-cv-06398-SI Blackman v. Variz (N.D.Cal.)

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(dismissed on December 18, 2006 for failure to state a claim); and (5) 1:06-cv-00081-GSA-PC

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Blackman v. Evans (E.D.Cal.) (dismissed on February 3, 2009, for failure to state a claim).

(1) 1:99-cv-05822-REC-HGB-P Blackman v. Hartwell

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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 five 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

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does not meet the imminent danger exception. See Andrews, 493 F.3d at 1053.

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Complaint, Plaintiff alleges that Defendants rejected his appeals, denied him access to the law

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library, confiscated his documents, allowed an inmate to attack Plaintiff with food, retaliated

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and discriminated against Plaintiff, violated his rights to due process, unlawfully placed him in

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administrative segregation, and refused to give him a copy of his trust account statement.

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Plaintiff also complains that a deputy district attorney used “nuclear power radio waves

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radiation pressure to control people conscious mind and impulse feeling.” (Compl., ECF No. 1

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at p. 26.) The Complaint is devoid of any showing that Plaintiff was under imminent danger of

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In the

serious physical injury at the time he filed the Complaint.

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Therefore, Plaintiff may not proceed in forma pauperis in this action, and must submit

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the appropriate filing fee in order to proceed with this action. Accordingly, Plaintiff’s motion

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to proceed in forma pauperis shall be denied, and this action shall be dismissed, without

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prejudice to refiling with the submission of the $400.00 filing fee in full.

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IV.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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in this action is DENIED;
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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff’s motion to proceed in forma pauperis

This action is DISMISSED, without prejudice to refiling with the submission of
the $400.00 filing fee in full; and

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

October 4, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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