Shepard v. Podsakoff et al

Filing 5

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 2 Motion for Leave to Proceed In Forma Pauperis be Denied; Thirty (30) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 6/6/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due by 7/10/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

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v.

Case No. 1:17-cv-00754-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS BE DENIED

M. PODSAKOFF, et al.,
(ECF No. 2)

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Defendants.
THIRTY (30) DAY DEADLINE

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Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for

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leave to proceed in forma pauperis, filed on June 2, 2017. (ECF No. 2.)
Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a

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prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.”1 Plaintiff has been informed in a prior case that he is subject to § 1915(g).2

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The Court takes judicial notice of the following United States District Court Cases: (1) Shepard v. Connolly, Case
No. 2:11-cv-01262-UA-MAN (C.D. Cal.) (dismissed on February 17, 2011, for being frivolous, malicious, or failing
to state a claim); (2) Shepard v. Johnson, Case No. 1:11-cv-01726-SKO PC (dismissed on August 7, 2012, for failure

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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 v. Cervantes, 493 F.3d 1047,

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1053−55 (9th Cir. 2007). Plaintiff initiated this action while at Calipatria State Prison in

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Calipatria, California, where he currently is housed. However, the allegations in the complaint

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concern events that occurred while Plaintiff was housed at Corcoran State Prison in Corcoran,

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California, in September 2010.

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Plaintiff alleges that on September 1, 2010, Defendant Podsakoff asked Plaintiff to submit

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to an unclothed body search during which Plaintiff stripped naked, squatted, and coughed while

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Defendant Podsakoff watched. Once Plaintiff finished, Defendant Podsakoff stated, “Do it again

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I didn’t see.” Plaintiff stated, “Every time you search me, you ask me to do it again this is the

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third time, and sexual harassment.” Plaintiff asked Defendant Podsakoff to get the sergeant, and

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Defendant Podsakoff refused. Plaintiff informed the unit supervisor and later filed a complaint

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against Defendant Podsakoff for sexual harassment. Plaintiff further alleges that on September

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23, 2010, Defendant Weatherford informed Defendant Podsakoff of the complaint. Plaintiff

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alleges that Defendant Podsakoff then wrote a false report on Plaintiff for disrespecting staff,

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dated September 29, 2010. Plaintiff argues that the later date of the report is evidence of

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retaliation against Plaintiff for filing a complaint against Defendant Podsakoff. (ECF No. 1.)
Plaintiff’s complaint concerns past events at an institution where he was no longer housed

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by the time he filed his complaint in this action. Furthermore, Plaintiff’s allegations of

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harassment and a false report at his previous institution do not show any risk of significant

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physical harm. Thus, Plaintiff has not alleged any imminent danger of serious physical injury at

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the time of filing and has not satisfied the exception from the three strikes bar under 28 U.S.C.

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§ 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action.

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to state a claim); (3) Shepard v. Munoz, Case No. 1:12-cv-01470-GSA PC (dismissed on October 8, 2013, for failure
to state a claim).
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The Court takes judicial notice of Documents 25 and 26 in Shepard v. Podsakoff, Case No. 1:12-cv-00495-AWIEPG (E.D. Cal.).

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Accordingly, it is HEREBY RECOMMENDED that:

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1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28

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U.S.C. § 1915(g); and
2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this

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action.

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These Findings and Recommendations will be submitted to the United States District

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

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file

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written objections with the court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file objections

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within the specified time may result in the waiver of the “right to challenge the magistrate’s

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factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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