Williams v. Bell et al

Filing 3

ORDER GRANTING Plaintiff's 2 Motion to Proceed IFP and Order Directing Payment of Inmate Filing Fee by California Department of Corrections, signed by Magistrate Judge Stanley A. Boone on 3/30/17. (Attachments: # 1 IFP Motion) (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, 12 Plaintiff, 13 v. 14 C. BELL, et al., 15 Defendants. 16 Case No.: 1:16-cv-01584-SAB (PC) ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER DIRECTING PAYMENT OF INMATE FILING FEE BY CALIFORNIA DEPARTMENT OF CORRECTIONS [ECF No. 2] Plaintiff John Wesley Williams is appearing pro se in this civil rights action pursuant to 42 17 18 ) ) ) ) ) ) ) ) ) ) U.S.C. § 1983. Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a prisoner 19 20 bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, while 21 incarcerated or detained in any facility, brought an action or appeal in a court of the United States that 22 was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted, unless the prisoner is under imminent danger of serious physical injury.”1 If a 24 plaintiff has three strikes under § 1915(g), he may still proceed in forma pauperis if he can show that 25 26 27 28 1 The court takes judicial notice of the following cases: Williams v. Narramore, No. CV 03-1972 UA-AJW (C.D. Cal. July 25, 2003) (civil rights action dismissed for failure to state a claim upon which relief may be granted); (2) Williams v. Bonzer, No. CV 04-8941 UA-AJW (C.D. Cal. Nov. 22, 2004) (same); (3) Williams v. Hubbard, et al., No. CV 10-1717 UA-FFM (C.D. Cal. July 6, 2010) (same); (4) Williams v. Young, No. 2:08-cv-1737 FCD-CMK-P (E.D. Cal. July 29, 2010 (same); and (5) Williams v. Harrington, et.al., No. 1:09-cv-01823 GSA-PC (E.D. Cal. May 25, 2012) (same). 1 1 he was in imminent danger at the time of filing his complaint. Andrews v. Cervantes, 493 F.3d 1047, 2 1053 (9th Cir. 2007). The “imminent danger” exception “applies if the complaint makes a plausible 3 allegation that the prisoner faced imminent physical danger at the time of filing” the complaint. Id. at 4 1055. Thus, to meet the imminent danger exception, the threat or prison condition must be real and 5 proximate, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), and the danger of serious physical 6 injury must exist at the time the complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-563 (2d 7 Cir. 2002); Andrews, 493 F.3d at 1053. In the instant complaint, Plaintiff alleges that Defendants C. Bell, S. Harris, R. Fischer, and 8 9 Douglas have denied him placement in a proper medical treatment facility/program for his psychiatric 10 “cutting” disorder because they do not want Plaintiff providing enhanced outpatient (EOP) reports to 11 attorneys for the EOP. Plaintiff’s allegations are sufficient to meet the “imminent danger of serious 12 physical injury” exception under § 1915(g), and Plaintiff shall be granted in forma pauperis status. 13 See, e.g., Andrews v. Cervantes, 493 F.3d 1047, 1055, 1056-1057 (9th Cir. 2007) (“[A] prisoner who 14 alleges that prison officials continue with a practice that has injured him or others similarly situated in 15 the past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of the three-strikes 16 exception.”). However, Plaintiff is obligated to make monthly payments in the amount of twenty 17 percent of the proceeding month’s income credited to Plaintiff’s trust account. The California 18 Department of Corrections and Rehabilitation is required to send to the Clerk of the Court payments 19 from Plaintiff’s account each time the amount in the account exceeds $10.00, until the statutory filing 20 fee is paid in full. 28 U.S.C. § 1915(b)(2). In accordance with the above and good cause appearing therefore, it is HEREBY ORDERED 21 22 that: 23 1. Plaintiff’s application to proceed in forma pauperis is GRANTED; 24 2. The Director of the California Department of Corrections and Rehabilitation or his 25 designee shall collect payments from Plaintiff’s prison trust account in an amount equal 26 to twenty percent (20%) of the preceding month’s income credited to the prisoner’s 27 trust account and shall forward those payments to the Clerk of the Court each time the 28 amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until 2 1 a total of $350.00 has been collected and forwarded to the Clerk of the Court. The 2 payments shall be clearly identified by the name and case number assigned to this 3 action. 3. 4 The Clerk of the Court is directed to serve a copy of this order and a copy of Plaintiff’s 5 in forma pauperis application on the Director of the California Department of 6 Corrections and Rehabilitations, via the court’s electronic case filing system 7 (CM/ECF). 4. 8 The Clerk of Court is directed to serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Fresno Division. 9 5. 10 Within sixty (60) days of the date of service of this order, Plaintiff shall submit a 11 certified copy of his prison trust account statement for the six-month period 12 immediately preceding the filing of the complaint, if Plaintiff has not already done so. 13 14 IT IS SO ORDERED. 15 Dated: 16 March 30, 2017 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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