Youngblood v. Uribe et al

Filing 6

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 10/3/17. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE L. YOUNGBLOOD,

Case No. 1:17-cv-1132-EPG-PC

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Plaintiff,

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v.

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ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY HIS APPLICATION TO
PROCEED IN FORMA PAUPERIS
SHOULD NOT BE DENIED

D. URIBE, et al.
(ECF No. 2)

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Defendants.
THIRTY DAY DEADLINE

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I.

BACKGROUND
Jesse L. Youngblood (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. On August 23, 2017, Plaintiff filed an

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application to proceed in forma pauperis. (ECF No. 2). On August 26, 2017, Plaintiff

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consented to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), (ECF

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No. 5), and no other parties have made an appearance. Therefore, the undersigned shall

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conduct any and all proceedings in this action until such time as reassignment to a District

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Judge is required. Local 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., Youngblood v. Clark, No.:1:15-

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cv-01746 (E.D. Cal. August 15, 2017) (dismissing action for failure to state a claim);

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Youngblood v. Warden, Case No. 4:13-cv-04366 (N.D. Cal. November 12, 2013) (dismissing

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action for failure to state a claim); Youngblood v. Evans, Case No. 4:13-cv-02097 (N.D. Cal.

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May 14, 2013) (dismissing action as frivolous and for failure to state a claim); Youngblood v.

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Warden, Case No. 4:12-cv-04423 (N.D. Cal. February 4, 2013) (dismissing action as frivolous

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and for failure to state a claim).

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Furthermore, 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. Plaintiff alleges that on August 5, 2015, while

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in a dining hall facility at Corcoran State Prison, he was directed by Correctional Officer D.

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Uribe to sit at a dining hall table and was caused to sustain injury when the dining hall table

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flipped over. His injuries required surgical treatment. After surgery, his wounds were to be

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cleaned and dressed daily. But, Jane Doe, an employee at Corcoran State Prison, refused to

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clean and dress his wounds, causing Plaintiff to contract an infection in his right thumb. His

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right thumb was treated with antibiotics, but he has sustained permanent loss of use of 80% of

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his right thumb. Plaintiff, however, does not allege or appear to be in imminent danger of

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serious physical injury.

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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:

October 3, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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