Driver v. U.S. Special Master et al

Filing 9

ORDER ADOPTING 7 FINDINGS AND RECOMMENDATIONS; ORDER DENYING Plaintiff's 2 Motion to Proceed IFP and Requiring Plaintiff to Pay the $400.00 Filing Fee to Proceed with this action; this matter is referred back to the assigned magistrate for proceedings consistent with this order, signed by District Judge Dale A. Drozd on 05/01/17. (45-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, 12 Plaintiff, 13 14 No. 1:17-cv-00202-DAD-BAM (PC) v. U.S. SPECIAL MASTER, et al., 15 Defendants. 16 (Doc. Nos. 2, 7) 17 Plaintiff Billy Driver, a state prisoner, proceeds pro se in this civil rights action filed on 18 19 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION February 13, 2017. (Doc. No. 1.) On February 22, 2017, the assigned magistrate judge issued findings and 20 21 recommendations recommending that plaintiff’s application to proceed in forma pauperis (“IFP”) 22 be denied and that he be required to pay the $400.00 filing fee in full to proceed with this action. 23 (Doc. No. 7.) In that order, the magistrate judge found that plaintiff was ineligible for IFP status 24 because he had accrued three prior strikes under 28 U.S.C. § 1915(g) and did not qualify for the 25 “imminent danger” exception outlined in § 1915(g). (Id.) The findings and recommendations 26 were served on plaintiff and contained notice that any objections thereto were to be filed within 27 fourteen (14) days after service. (Id. at 3.) Plaintiff filed objections on March 9, 2017. (Doc. No. 28 8.) 1 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c), this court has conducted a 2 de novo review of the case, including plaintiff’s objections, and has concluded that the magistrate 3 judge’s findings and recommendations are supported by the record and proper analysis. 4 Plaintiff argues in his objections that the magistrate judge erred in finding him ineligible 5 for the “imminent danger” exception of § 1915(g). In particular, he contends that if the court 6 dismisses his claims, he will continue to be pepper sprayed, beaten, unlawfully detained, and 7 forcibly medicated. (Doc. No. 8 at 2.) However, in reviewing plaintiff’s complaint and pending 8 objections to the findings and recommendations, the court finds plaintiff has not presented 9 plausible, non-conclusory allegations of fact indicating he faced an imminent danger of serious 10 physical harm at the time he filed his complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 11 (9th Cir. 2007) (availability of imminent danger exception turns on the conditions the prisoner 12 faced at the time the complaint was filed); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) 13 (explaining that to qualify for the imminent danger exception under 28 U.S.C. § 1915(g), an 14 inmate must provide “specific fact allegations” supporting an ongoing serious physical injury or 15 the likelihood of imminent serious physical injury). 16 Plaintiff’s contentions regarding being pepper sprayed and beaten at some future time are 17 insufficient, by themselves, to demonstrate imminent danger under 28 U.S.C. § 1915(g). See 18 Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir. 2001) (finding that the imminent danger 19 exception did not apply when plaintiff alleged that he had previously been pepper sprayed); 20 Meador v. Alvidrez, No. 1:09–cv–01058–LJO–GSA–PC, 2010 WL 1948565, at *2 (E.D. Cal. 21 May 11, 2010) (“The mere possibility that plaintiff could be subject to the prison’s practice of 22 utilizing pepper spray does not establish that plaintiff was under threat of real and proximate 23 danger at the time the complaint was filed”). 24 Similarly, plaintiff’s vague allegations regarding the involuntary administration of 25 medication do not suffice to allege imminent danger of serious physical harm. In his complaint, 26 plaintiff alleges that he has been subject to a forced medication order since September 2016. 27 (Doc. No. 1 at 4, 14.) However, plaintiff does not allege that he was subjected to this order 28 without due-process, or that the medications administered have resulted in him suffering any 2 1 harm or dangerous side effects. See Lewis v. Vail, No. C10–0267–RSL, 2010 WL 1417719, at *2 2 (W.D. Wash. Feb. 23, 2010) (finding the imminent danger exception inapplicable because 3 plaintiff “does not allege that defendants have decided to medicate him involuntarily, that such 4 decision is pending, or that such a decision would or could be made without affording him due- 5 process protections”); cf. Bradford v. Marchak, 667 Fed. Appx. 616, 617 (9th Cir. 2016)1 6 (“[Plaintiff] plausibly alleged ‘imminent danger of serious physical injury’ given his allegations 7 of chest pain, dizziness, blurred vision and headaches from ongoing involuntary psychotropic 8 medication.”). Finally, plaintiff’s allegations of unlawful detainment are “too attenuated from any form 9 10 of imminent danger” to trigger the § 1915(g) exception. McClellan v. Kern Cty. Sheriff’s Office, 11 No. 1:10–cv–0386–LJO-MJS, 2015 WL 5732077, at *2 (E.D. Cal. Sept. 28, 2015). 12 For these reasons: 13 1. 14 The findings and recommendations (Doc. No. 7) issued on February 8, 2017, are adopted in full; 15 2. 16 In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is denied; 17 3. Within forty-five (45) days following service of this order, plaintiff shall pay the 18 $400.00 filing fee in full to proceed with this action. If plaintiff fails to pay the 19 filing fee within the specified time, this action will be dismissed; and 20 4. 21 22 The matter is referred back to the assigned magistrate for proceedings consistent with this order. IT IS SO ORDERED. 23 Dated: May 1, 2017 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). 3

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