Driver v. U.S. Special Master et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 2/22/2017 recommending that 2 MOTION to PROCEED IN FORMA PAUPERIS be denied. Referred to Judge Dale A. Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILLY DRIVER,

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Plaintiff,

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Case No. 1:17-cv-00202-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS BE DENIED

v.
U.S. SPECIAL MASTER, et al.,

(ECF No. 2)

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Defendants.
FOURTEEN (14) DAY DEADLINE

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Findings and Recommendations

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Plaintiff Billy Driver (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on

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February 13, 2017. (ECF No. 1.) On the same day, Plaintiff filed an application to proceed in

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forma pauperis under 28 U.S.C. § 1915. (ECF No. 2.)
The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil

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action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated

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or detained in any facility, brought an action or appeal in a court of the United States that was

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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.” 28

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U.S.C. § 1915(g).

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Plaintiff has suffered three or more strikes under section 1915 (g), and the Court takes

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judicial notice of the following cases: (1) Driver v. Martel, Case No. 2:08-cv-01910-GEB-EFB

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(E.D. Cal.) (dismissed September 16, 2009, for failure to state a claim); (2) Driver v. Kelso, Case

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No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed September 12, 2012, for failure to state a claim);

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and (3) Driver v. Epp, Case No. 2:12-cv-00589-EFB (E.D. Cal.) (dismissed September 5, 2012,

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for failure to state a claim). Therefore, Plaintiff may not proceed in forma pauperis unless he has

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met the imminent danger exception to section 1915(g).

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The availability of the imminent danger exception turns on the conditions a prisoner faced
at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes,

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493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less obviously

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injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent

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danger of serious physical injury must be a real, present threat, not merely speculative or

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hypothetical. To meet this burden under § 1915(g), an inmate must provide “specific fact

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allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the

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likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.

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2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado,

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157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the “imminent danger” exception is available

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“for genuine emergencies,” where “time is pressing” and “a threat ... is real and proximate.”

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Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

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The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy

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the imminent danger exception to section 1915(g). Andrews, 493 F.3d at1053-55. Plaintiff’s

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complaint concerns events occurring at California State Prison, Los Angeles County in Lancaster,

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California and at Kern Valley State Prison in Delano, California. Plaintiff alleges that he has

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been pepper sprayed over twenty times, illegally issued over 100 CDCR 115 rule violations,

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forced to take medication, and illegally denied parole. Plaintiff also alleges that has been denied

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access to the courts. (ECF No. 1.) Plaintiff has not alleged any harmful side effects from the

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involuntary medication or any current threats of being pepper sprayed. Moreover, Plaintiff’s

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allegations concern past conduct. As Plaintiff is no longer incarcerated at Kern Valley State
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Prison, he cannot be under imminent danger from persons at Kern Valley State Prison.

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Therefore, the Court finds no allegations that Plaintiff was in imminent danger of serious physical

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injury at the time he filed the complaint. Therefore, 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

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to litigate this action.

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Accordingly, the Court HEREBY RECOMMENDS that:

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1. In accordance with 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma

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pauperis (ECF No. 2) be DENIED; and

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2. Plaintiff be required to pay the $400.00 filing fee in full to proceed with this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

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834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 22, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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