Wilson v. California State Prison Corcoran et al

Filing 3

ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Motion to Proceed In Forma Pauperis be DENIED and that Plaintiff be Required to Submit the Filing Fee Within 14 Days of an Or der Adopting These Recommendations re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 3/31/2018. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The new case number is 1:18-cv-00424-DAD-MJS (PC). Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID W. WILSON,
Plaintiff,

12
v.

13
14

CALIFORNIA STATE PRISON
CORCORAN, et al.,

15
16
17

Defendants.

Case No. 1:18-cv-00424-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY MOTION TO PROCEED IN
FORMA PAUPERIS
(ECF No. 2)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE
FOURTEEN-DAY OBJECTIONS
DEADLINE

18
19

Plaintiff is a state prisoner proceeding pro se in this civil rights action filed on

20 March 28, 2018. (ECF No. 1.) Plaintiff has not prepaid the filing fee as required by Local
21 Rule 121(c). Accompanying his complaint was a motion to proceed in forma pauperis.
22 (ECF No. 2.) For the reasons set forth below, the motion should be denied.
23 I.

Motion to Proceed In Forma Pauperis

24

Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a

25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior
26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a
27 court of the United States that was dismissed on the grounds that it is frivolous,
28 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

1 is under imminent danger of serious physical injury.”
2

A.

Actions Dismissed for Failure to State Claim

3

Plaintiff has brought four actions that were dismissed for failing to state a claim.

4 See Wilson v. Tilton, No. 2:06-cv-01031-LKK-PAN (E.D. Cal. Sept. 12, 2006); Wilson v.
5 Schwartz, No. 2:05-cv-01649-GEB-CMK (E.D. Cal. Oct. 31, 2006); Wilson v. Dovey, No.
6 2:06-cv-01032-FCD-EFB (E.D. Cal. March 8, 2007); Wilson v. Veal, No. 2:06-cv-000677 FCD-KJM (E.D. Cal. June 4, 2007).
8

All of Plaintiff‟s actions noted above were dismissed before March 28, 2018,

9 when Plaintiff filed the present action. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g)
10 and is precluded from proceeding in forma pauperis in this action unless at the time the
11 complaint was filed, he was under imminent danger of serious physical injury.
12

B.

Imminent Danger Exception

13

The imminent danger exception applies if “the complaint makes a plausible

14 allegation that the prisoner faced „imminent danger of serious physical injury‟ at the time
15 of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit
16 interprets “imminent danger” to mean “ongoing danger,” meaning the prisoner must
17 allege that prison officials have continued with a practice that has injured him or others
18 similarly situated in the past. Id. at 1056-57.
19

A prisoner seeking to invoke the imminent danger exception in § 1915(g) must

20 make specific, credible allegations of imminent danger of serious physical harm. McNeil
21 v. U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006) (citing Kinnell v. Graves, 265 F.3d
22 1125, 1127-28 (10th Cir. 2001), and White v. Colorado, 157 F.3d 1226, 1232 (10th Cir.
23 1998)). Vague, speculative, and non-specific allegations are insufficient. See Pauline v.
24 Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009) (plaintiff's vague and conclusory
25 allegations of possible future harm to himself or others are insufficient to trigger the
26 “imminent danger of serious physical injury” exception to dismissal under § 1915(g));
27 Cooper v. Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006) (plaintiff's allegations that
28 he will commit suicide, or that he has already attempted suicide and will do so again,
2

1 are insufficient to show imminent danger); Luedtke v. Bertrand, 32 F.Supp.2d 1074,
2 1077 (E.D. Wis. 1999) (“[p]laintiff's vague allegation of a conspiracy among the
3 defendants to beat, assault, injure, harass and retaliate against him are not enough.
4 These allegations are insufficient and lack the specificity necessary to show an
5 imminent threat of serious physical injury.”).
6

Here, Plaintiff‟s complaint fails to reflect that Plaintiff is at imminent risk of

7 suffering “serious physical injury.”
8

Although the complaint is largely incomprehensible and its allegations difficult to

9 decipher, it alleges the following multitude of alleged constitutional violations: Plaintiff
10 was transferred in retaliation for engaging in a protected act, and the transfer did not
11 ensure compliance with his rights under the Americans with Disabilities Act (“ADA”);
12 Defendants have deprived him of certain items, such as a fan and special mattress, he
13 considers medical necessities; he has been seen by a nurse practitioner, while being
14 denied visits by a medical doctor; he seeks but has been denied special transport
15 accommodations, an air mattress with an electric fan, a ban on further video doctor‟s
16 visits, the return of his toenail clippers, special accommodations on searches conducted
17 when he is out of his cell, a special therapeutic diet, access to the library five days a
18 week, a requirement that all kitchen personnel who handle food wear caps and aprons,
19 and

enactment of a long list of procedural and physical changes to the prison. (ECF

20 No. 1 at 20-24.)
21

The Court can identify no allegations in the foregoing or otherwise that indicate

22 Plaintiff

is exposed to imminent physical danger from which he needs the Court‟s

23 protection.
24 II.

Conclusion

25

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a District

26 Judge to this action to address the following recommendations.
27

Furthermore, IT IS HEREBY RECOMMENED that Plaintiff‟s motion to proceed in

28 forma pauperis (ECF No. 2) be denied and that Plaintiff be required to submit the filing
3

1 fee within 14 days of an Order adopting these recommendations.
These Findings and Recommendations will be submitted to the United States

2

3 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
4 636(b)(l). Within fourteen (14) days after being served with these Findings and
5 Recommendations, the parties may file written objections with the Court. The document
6 should

be

captioned

7 Recommendations.”

“Objections

to

Magistrate

Judge‟s

Findings

and

The parties are advised that failure to file objections within the

8 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772
9 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
10 1991)).
11
12
13

IT IS SO ORDERED.
Dated:

March 31, 2018

/s/

14

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4