Logan v. Tomer et al
Filing
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ORDER for Plaintiff to SHOW CAUSE Why His Application to Proceed In Forma Pauperis Should Not be Denied, signed by Magistrate Judge Erica P. Grosjean on 7/21/17. Show Cause Response Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES DAVID LOGAN, II,
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Plaintiff,
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v.
DR. TOMER
and DR. GLADSTEIN,
Defendants.
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ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY HIS APPLICATION TO
PROCEED IN FORMA PAUPERIS
SHOULD NOT BE DENIED
(ECF NO. 2)
THIRTY DAY DEADLINE
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Case No. 1:17-cv-00887 -EPG (PC)
I.
BACKGROUND
James David Logan, II (“Plaintiff”) is a state prisoner proceeding pro se with this civil
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rights action filed pursuant to 42 U.S.C. § 1983.
On June 29, 2017, Plaintiff filed an
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application to proceed in forma pauperis. (ECF No. 2). On July 19, 2017, Plaintiff consented
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to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 8), and
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no other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the
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Local Rules of the Eastern District of California, the undersigned shall conduct any and all
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proceedings in the case until such time as reassignment to a District Judge is required. Local
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Rule Appendix A(k)(3).
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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides
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that “[i]n no event shall a prisoner bring a civil action… under this section if the prisoner has,
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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
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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.”
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Section 1915(g) appears to preclude Plaintiff from proceeding in forma pauperis.
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Plaintiff appears to have more than three “strikes.” See, e.g., Logan v. Horwitz, E.D. CA, Case
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No. 2:15-cv-00121, ECF No. 29 (finding that Plaintiff has eight “strikes” and citing underlying
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cases).
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Additionally, based on the complaint, it does not appear that Plaintiff is in imminent
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danger. The availability of the imminent danger exception “turns on the conditions a prisoner
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faced at the time the complaint was filed, not at some earlier or later time.” Andrews v.
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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger of serious physical injury
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must be a real, present threat, not merely speculative or hypothetical.” Blackman v. Mjening,
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No. 116CV01421LJOGSAPC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his
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burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing serious
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physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious
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physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly
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conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32
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(10th Cir. 1998). The “imminent danger” exception is available “for genuine emergencies,”
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where “time is pressing” and “a threat… is real and proximate….” Lewis v. Sullivan, 279 F.3d
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526, 531 (7th Cir. 2002).
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Based on the facts alleged in the complaint (ECF No. 1), it does not appear that Plaintiff
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is in imminent danger of serious physical injury. The complaint is difficult to understand at
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times, but it appears that Plaintiff is alleging that, in retaliation for Plaintiff filing 602 appeals,
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Defendants denied Plaintiff medical treatment that he needs.
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Plaintiff is in imminent danger of serious physical injury, and Plaintiff does not appear to be in
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imminent danger of serious physical injury.
There is no allegation that
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Therefore, the Court will order Plaintiff to show cause why it should not deny
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Plaintiff’s application to proceed in forma pauperis and require Plaintiff to pay the $400 filing
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fee.
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Accordingly, based on the foregoing, IT IS ORDERED that Plaintiff has thirty (30)
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days from the date of service of this order to show cause why the Court should not deny his
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application to proceed in forma pauperis and require him to pay the $400 filing fee. Failure to
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respond to this order will result in dismissal of this action.
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IT IS SO ORDERED.
Dated:
July 21, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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