(PC) Luedtke v. Ciolli et al

Filing 26

ORDER granting Plaintiff's Motion to void In Forma Pauperis filing 25 ; requiring Plaintiff to Show Cause why this action should not be dismissed for failure to pay filing fee signed by Magistrate Judge Barbara A. McAuliffe on 2/18/2021. (Show Cause Response due within 21-Days).(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES LUEDTKE, 12 Plaintiff, 13 14 Case No. 1:20-cv-00406-NONE-BAM (PC) ORDER GRANTING PLAINTIFF’S MOTION TO VOID IN FORMA PAUPERIS FILING v. (ECF No. 25) CIOLLI, et al., 16 ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PAY THE FILING FEE 17 TWENTY-ONE (21) DAY DEADLINE 15 Defendants. 18 19 I. Introduction Plaintiff James Luedtke (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 20 21 pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. 22 Bureau of Narcotics, 403 U.S. 388 (1971). This action was initiated on March 19, 2020, and the 23 Court granted Plaintiff’s application to proceed in forma pauperis on May 19, 2020. (ECF Nos. 24 13, 15.) 25 II. 26 Motion to Void In Forma Pauperis Status On October 19, 2020, Plaintiff filed a “Motion to Void In Forma Pauperis Filing,” 27 claiming that the application must be adjudged null and void because the certificate section was 28 not completed, in violation of 28 U.S.C. § 1915(a)(2). (ECF No. 25.) Plaintiff claims that the 1 1 undersigned created an unlawful waiver for the certificate section of the application. (Id.) The Court is not persuaded by Plaintiff’s argument. The statute does not require that the 2 3 certificate section of the application be completed, merely that a prisoner “shall submit a certified 4 copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6- 5 month period immediately preceding the filing of the complaint[.]” 28 U.S.C. § 1915(a)(2). However, the Court agrees that Plaintiff’s in forma pauperis status should be voided on a 6 7 separate ground. Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event 8 shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 9 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 10 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 11 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 12 physical injury.”1 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 13 14 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 15 1053−55 (9th Cir. 2007). In the complaint, which is 60 pages in length, Plaintiff alleges 24 16 separate claims. The complaint is conclusory and contains a litany of grievances that include the 17 following: the food served at USP Atwater is not nutritionally balanced, the cells are too small for 18 double celling, there are potential threats to safety due to “shot caller” inmates who demand other 19 inmates hand over certain paperwork, money has been illegally encumbered in Plaintiff’s trust 20 1 27 The Court takes judicial notice of the following United States District Court cases: (1) Luedtke v. Gudmanson, Case No. 2:96-cv-00590-AEG (E.D. Wis.) (dismissed on July 24, 1997 as frivolous); (2) Luedtke v. United States of America, Case No. 1:99-cv-00503-UNA (D.D.C.) (dismissed on February 26, 1999 for failure to state a claim), aff’d, Case No. 99-5084 (D.C. Cir. Aug. 9, 1999); (3) Luedtke v. United States of America, Case No. 1:99-cv-00513-UNA (D.D.C.) (dismissed on February 26, 1999 for failure to state a claim), aff’d, Case No. 99-5085 (D.C. Cir. Aug. 9, 1999); (4) Luedtke v. Posner, Case No. 1:99-cv-01695 (N.D. Ill.) (dismissed on March 22, 1999 for failure to state a claim); and (5) Luedtke v. Obama, Case No. 1:14-cv00389-UNA (D.D.C.) (dismissed on March 12, 2014 for failure to state a claim). The Court also takes judicial notice of the following United States Court of Appeals case: Luedtke v. Obama, Case No. 14-5084 (D.C. Cir.) (dismissed on January 14, 2015 on court’s own motion, citing 28 U.S.C. § 1915(e)(2)). 28 2 21 22 23 24 25 26 The Court expresses no opinion on the merits of Plaintiff’s claims. 2 1 account, there is no classification system for separating gang and non-gang members, inmates are 2 forced to change cells every 21 days, the commissary is not fully stocked to Plaintiff’s liking, 3 strip searches are conducted, there are no typewriters for inmate usage, inmates are not provided 4 free hygiene supplies, shortwave radios are banned, many television channels are blocked, all the 5 mattresses are “shot,” inmates in segregation are denied books, physical body searches are 6 conducted, the institution’s subscription to the Criminal Law Reporter was cancelled, lockdowns 7 are excessive, there are fly infestations during warmer months, job assignments are on paper only 8 and/or are not paid, the library does not have a book collection and should be providing inmates 9 with tablets, Plaintiff was not notified about the existence of a class action about blood filters, 10 Plaintiff was not provided medication to treat his anxiety and depression, a monetary incentive for 11 completing a program was seized for restitution, there are not enough functioning washers and 12 dryers for laundry, and not enough showers are allowed during lockdowns. (ECF No. 1.) 13 Nowhere in the lengthy complaint, which appears to include every issue Plaintiff wishes 14 to raise regarding his experiences in federal prisons, does Plaintiff allege that any of these 15 grievances rises to a level that would create an imminent danger of serious physical injury to 16 Plaintiff, or to any individual. For many of these claims, Plaintiff includes no explanation of how 17 these issues affect him personally at all, much less in a way that could cause him imminent 18 danger. Therefore, the Court finds that Plaintiff has failed to satisfy the exception from the three 19 strikes bar under 28 U.S.C. § 1915(g). The complaint contains no allegations demonstrating that 20 Plaintiff was in imminent danger of serious physical injury at the time the complaint was filed. 21 III. Conclusion and Order 22 Based on the foregoing, the Court finds that Plaintiff is precluded from proceeding 23 without prepayment of fees under section 1915(g) and that the complaint does not allege that he is 24 in imminent danger. 25 Accordingly, IT IS HEREBY ORDERED as follows: 1. Plaintiff’s motion to void in forma pauperis filing, (ECF No. 25), is GRANTED; 26 27 /// 28 /// 3 1 2 2. Within twenty-one (21) days from the date of service of this order, Plaintiff SHALL either: 3 a. Show cause in writing why this case should not be dismissed for failure to pay the 4 filing fee; or 5 6 7 b. Pay the remaining $402.00 initial filing fee in full to proceed with this action; and 3. Plaintiff’s failure to comply with this order may result in sanctions, including dismissal of this action. 8 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara February 18, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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