Langston v. Mims

Filing 9

ORDER DISMISSING CASE without prejudice to re-filing accompanied by the $400.00 Filing Fee; ORDER DENYING Plaintiff's 6 Motion to Proceed IFP, signed by Magistrate Judge Barbara A. McAuliffe on 02/7/17. CASE CLOSED(Martin-Gill, S)

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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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v.
MIMS,

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Defendant.

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Case No.: 1:16-cv-01819-BAM
ORDER DENYING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS
(ECF No. 6)
ORDER DISMISSING ACTION WITHOUT
PREJUDICE TO REFILING WITH SUBMISSION
OF $400.00 FILING FEE

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

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action on November 21, 2016, in the Sacramento Division of this district court. (ECF No. 1.) On

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December 2, 2016, the action was transferred from the Sacramento Division to the Fresno Division.

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(ECF No. 3.)

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Following the transfer, on December 6, 2016, Plaintiff was ordered to submit an application to

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proceed in forma pauperis or to pay the filing fee within forty-five days of the date of service of that

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order. (ECF No. 5.) Plaintiff filed the instant motion for leave to proceed in forma pauperis, on

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December 21, 2016. (ECF No. 6). Plaintiff also consented to the jurisdiction of a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 8.)

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Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while
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incarcerated or detained in any facility, brought an action or appeal in a court of the United States that

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was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief

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may be granted, unless the prisoner is under imminent danger of serious physical injury.”1

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The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the imminent

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danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007).

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Plaintiff alleges that in May or June 2016, Defendant Mims, a psychologist at California State Prison,

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Corcoran (“CSP-Corcoran”), indicated that she would subject Plaintiff to a disciplinary report for

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manipulating staff, because he was seeking treatment for suicide ideations. Plaintiff further alleges that

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he was discharged from the crisis unit, and could no longer seek treatment for suicide ideations.

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Plaintiff indicates that he filed a 602 appeal on June 3, 2016, complaining that he could not be

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punished for seeking treatment for suicide ideation. Plaintiff’s complaint was filed about five months

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after he filed his 602 appeal, on November 17, 2016. Plaintiff alleges that at the time of filing his

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complaint, he had been transferred away from CSP-Cocoran, and was housed at Valley State Prison, in

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Chowchilla, California.

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Plaintiff’s complaint concerns allegations against a psychologist at an institution where he was

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no longer housed by the time his complaint was filed. Thus, Plaintiff has not sufficiently alleged any

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imminent danger of serious physical injury at the time of that filing. Plaintiff’s unsupported statement

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that he is in imminent danger because of an “ongoing conspiracy against his life” by prison officials is

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vague and conclusory, and therefore also fails to adequately allege any imminent danger of serious

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physical injury at the time he filed his complaint. Thus, Plaintiff has not satisfied the exception from

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the three strikes bar under 28 U.S.C. § 1915(g), and must pay the $400.00 filing fee if he wishes to

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litigate this claim.

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The Court takes judicial notice of the following United States District Court cases: 2:10-cv-02196-EFB
Langston v. Finn, et al. (E.D. Cal) (dismissed on March 2, 2011, for failure to state a claim); (2) 2:10-cv-02715GGH Langston v. Enkojii, et al. (E.D. Cal.) (dismissed on April 26, 2011, for failure to state a claim); (3) 2:08cv-02475-EFS Langston v. Finn, et al. (E.D. Cal.) (dismissed on May 1, 2013, for failure to state a claim); and
(4) 2:10-cv-03191-KJN Langston v. Hartley, et al. (E.D. Cal.) (dismissed on May 24, 2013, for failure to state a
claim).

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Accordingly, the Court HEREBY ORDERS as follows:

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Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 6) is DENIED; and,

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This action is DISMISSED without prejudice to re-filing accompanied by the $400.00

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filing fee.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 7, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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