Williams v. Lewis et al

Filing 5

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 3 Motion to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Stanley A. Boone on 5/2/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/5/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN WILLIAMS,

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Plaintiff,

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v.

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J. LEWIS, et al.,

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Defendants.

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Case No.: 1:17-cv-00570-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS BE DENIED
[ECF No. 3]

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I.

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INTRODUCTION

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On April 24, 2017, Plaintiff John Williams, a state prisoner proceeding pro se, filed this civil

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rights action pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis, 28

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U.S.C. § 1915(a). (ECF Nos. 1 and 2.) However, Plaintiff is subject to section 1915(g) of the statute,

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and he may only proceed in forma pauperis if he has met the imminent danger exception. 28 U.S.C. §

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1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1051-1052 (9th Cir. 2007).

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II.

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LEGAL STANDARD

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The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner

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complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to

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the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related
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screening device which precludes prisoners with three or more “strikes” from proceeding in forma

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pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at

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1050. The statute provides that “[i]n no event shall a prisoner bring a civil action … under this section

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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, 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.” 28 U.S.C. § 1915(g).

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III.

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DISCUSSION
Plaintiff has suffered three or more strikes under section 1915(g). The Court takes judicial

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notice of the following cases: Williams v. Narramore, No. CV 03-1972 UA-AJW (C.D. Cal. July 25,

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2003) (civil rights action dismissed for failure to state a claim upon which relief may be granted); (2)

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Williams v. Bonzer, No. CV 04-8941 UA-AJW (C.D. Cal. Nov. 22, 2004) (same); (3) Williams v.

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Hubbard, et al., No. CV 10-1717 UA-FFM (C.D. Cal. July 6, 2010) (same); (4) Williams v. Young,

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No. 2:08-cv-1737 FCD-CMK-P (E.D. Cal. July 29, 2010 (same); and (5) Williams v. Harrington,

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et.al., No. 1:09-cv-01823 GSA-PC (E.D. Cal. May 25, 2012) (same).

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The issue now becomes whether Plaintiff has met the imminent danger exception, which

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requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which

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turns on the conditions he faced at the time he filed suit on March 3, 2016. Andrews, 493 F.3d at

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1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial,

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as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a

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merits-based review of the claims, the allegations of imminent danger must still be plausible. Id. at

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1055.

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The Court has reviewed Plaintiff’s complaint and finds that Plaintiff does not meet the

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imminent danger exception. Andrews, 493 F.3d at 1053. Plaintiff contends that in November of

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2016, prison officials ordered that money would no longer be used to pay for distilled water for use of

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the continuous positive airway pressure (CPAP) machine. Plaintiff alleges that he is under imminent

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danger based on the denial of distilled water that is necessary in order utilize his CPAP machine to
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treat his sleep apnea. Plaintiff contends that without usage of the machine Plaintiff is at high risk of

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dying from lack of breathing, heart attack, stroke, diabetes, high blood pressure and suicide from

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aggravation of his pre-existing cutting disorder. Plaintiff’s allegations fail to demonstrate sufficient

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“imminent danger of serious physical injury” as Plaintiff is still able to use tap water, and there are

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insufficient allegations to demonstrate that the failure to receive distilled water results in imminent

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physical injury. Indeed, there are no allegations in the complaint that Plaintiff has attempted to use tap

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water with negative results or that the CPAP cannot work without water. Furthermore, Plaintiff’s

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allegation that the lack of use of the machine has led to Plaintiff “displaying more frequent hostile

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behavior” is not sufficient to meet the imminent danger standard. Accordingly, Plaintiff is ineligible

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to proceed in forma pauperis in this action.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff’s application to proceed in forma pauperis be denied; and

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Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service of
the Court’s order adopting these Findings and Recommendations.

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These Findings and Recommendations will be 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 thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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May 2, 2017
UNITED STATES MAGISTRATE JUDGE

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