Langston v. Avila
Filing
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ORDER Revoking In Forma Pauperis signed by Magistrate Judge Jennifer L. Thurston on 01/31/2017. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WALTHER SHANE LANGSTON,
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Plaintiff,
Case No. 1:16-cv-01445-JLT (PC)
ORDER REVOKING
IN FORMA PAUPERIS
v.
(Docs. 7, 8, 9, 10, 11)
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AVILA,
Defendant.
30 DAY DEADLINE
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On November 29, 2016, the Court granted the plaintiff’s request to proceed in forma
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pauperis. Plaintiff thereafter filed a motion to “supplement” his in forma pauperis status, which
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when reviewed in light of the complaint, revealed that Plaintiff was less than truthful as to prior
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lawsuits filed while a prisoner and that his in forma pauperis status should be revoked. Thus, on
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December 16, 2016, the Court ordered Plaintiff to show cause within 30 days why his in forma
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pauperis status should not be revoked. (Doc. 11, OSC.) More than the allowed time has lapsed
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and Plaintiff has failed in any way to respond to the OSC.
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As stated in the OSC, prisoners may not bring a civil action under 28 U.S.C. §1915(g) if
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he or she has, on three or more prior occasions, while incarcerated or detained, brought an action
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or appeal that was dismissed as frivolous, malicious, or for failure to state a claim upon which
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relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
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Such dismissals are colloquially referred to as "strikes." As also accurately noted in the OSC,
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Plaintiff had at least four strikes1 under section 1915(g) prior to filing this action. Thus, Plaintiff
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may only proceed under section 1915(g) if he meets the imminent danger of serious physical
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injury exception.
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The Ninth Circuit has stated that "requiring a prisoner to 'allege [ ] an ongoing danger' . . .
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is the most sensible way to interpret the immanency requirement." Andrews v. Cervantes, 493
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F.3d 1047, 1056 (9th Cir.2007), citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.2003).
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Andrews held that the imminent danger faced by the prisoner need not be limited to the time
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frame of the filing of the complaint, but may be satisfied by alleging a danger that is ongoing.
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See Andrews at 1053.
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As found in the OSC, Plaintiff's complaint does not satisfy the imminent danger exception
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as he does not state any factual allegations, but merely wrote “see attached.” (Doc. 1, p. 3.) As
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Plaintiff well knows due to his experience in filing lawsuits, it is not the Court’s job to sift
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through exhibits to ascertain the claims Plaintiff intends to pursue, their factual basis, and the
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identities of persons whom he intends to pursue as defendants. O’Guinn v. Lovelock Corr. Ctr.,
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502 F.3d 1056, 1060 (9th Cir. 2007) (quoting Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir.
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1999)) (“‘[T]he party who brings a suit is master to decide what law he will rely upon.’”).
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Plaintiff does not state allegations upon which to find that he was under imminent danger of
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serious physical injury at the time the Complaint was filed to satisfy the imminent danger
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exception to section 1915(g). See Andrews, 493 F.3d at 1055-56. Therefore, Plaintiff must pay
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the $400.00 filing fee if he wishes to litigate the claims he raises in this action. Accordingly, the
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Court ORDERS:
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Plaintiff’s in forma pauperis status is REVOKED;
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See Case Nos. Langston v. Finn, et al., 2:10-cv-02196-EFB, dismissed on 03/02/2011; Langston v. Enkojii, et al.,
2:10-cv-02715-GGH, dismissed on 04/26/2011; Langston v. Finn, et al., 2:08-cv-00275-EFS, dismissed on
05/01/2013; and Langston v. Hartley, et al., 2:10-cv-03191-KJN, dismissed on 05/24/2013.
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Within 30 days from the date of service of this order, Plaintiff SHALL pay the
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$400.00 filing fee for this action in full.
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Plaintiff’s failure to comply with this order SHALL result in the dismissal of this action.
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IT IS SO ORDERED.
Dated:
January 31, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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