Langston v. Jordan

Filing 6

ORDER Denying Plaintiff Leave to Proceed In Forma Pauperis Under 28 USC 1915(g) and Dismissing Action, without Prejudice to Refiling with Submission of $400.00 Filing Fee in Full; ORDER For Clerk to Close Case, signed by Magistrate Judge Gary S. Austin on 12/8/16. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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Plaintiff,

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vs.
JORDON,

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Defendant.

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1:16-cv-01800-GSA-PC
ORDER DENYING PLAINTIFF
LEAVE 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 No. 1.)
ORDER FOR CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Walter Shane Langston (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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

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action on November 18, 2016, in the Sacramento Division of the U. S. District Court, Eastern

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District of California. (ECF No. 1.) On November 29, 2016, this case was transferred to the

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Fresno Division of the Eastern District of California. (ECF No. 3.).

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On December 7, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 5.)

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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 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 four 1915(g) “strikes” against Plaintiff, which were all

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entered before this action was brought by Plaintiff on November 18, 2016.1 The Court takes

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judicial notice of these cases: (1) 2:10-cv-02196-EFB Langston v. Finn, et al. (E.D.Cal)

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(dismissed on March 2, 2011, for failure to state a claim); (2) 2:10-cv-02715-GGH Langston v.

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Enkojii, et al. (E.D.Cal.) (dismissed on April 26, 2011, for failure to state a claim); (3) 2:08-cv-

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00275-EFS Langston v. Finn, et al. (E.D.Cal.) (dismissed on May 1, 2013, for failure to state a

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claim); and (4) 2:10-cv-03191-KJN Langston v. Hartley, et al. (E.D.Cal.) (dismissed on May

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24, 2013, for failure to state a claim).

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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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The Court has examined the orders dismissing the four cases and finds that they constitute “strikes”
within the meaning of § 1915(g).
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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 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 Defendant Correctional Officer Jordon failed to give Plaintiff a

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property receipt which Plaintiff needs to receive his property. Plaintiff approached Defendant

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Jordon on July 20, 2016, and requested the receipt. Defendant Jordon told Plaintiff he would

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give him the property receipt in exchange for sexual favors. Plaintiff filed a grievance against

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Defendant Jordon. The Complaint is devoid of any showing that Plaintiff was under imminent

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danger of serious physical injury at the time he filed the Complaint.

In the

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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 shall be

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denied leave to proceed in forma pauperis in this case, and this case 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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pauperis in this case;
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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff is DENIED leave to proceed in forma

This case 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:

December 8, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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