(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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES LUEDTKE,

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Plaintiff,

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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.,

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ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY THIS ACTION SHOULD NOT
BE DISMISSED FOR FAILURE TO PAY
THE FILING FEE

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TWENTY-ONE (21) DAY DEADLINE

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Defendants.

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I.

Introduction
Plaintiff James Luedtke (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971). This action was initiated on March 19, 2020, and the

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Court granted Plaintiff’s application to proceed in forma pauperis on May 19, 2020. (ECF Nos.

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13, 15.)

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II.

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Motion to Void In Forma Pauperis Status
On October 19, 2020, Plaintiff filed a “Motion to Void In Forma Pauperis Filing,”

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claiming that the application must be adjudged null and void because the certificate section was

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not completed, in violation of 28 U.S.C. § 1915(a)(2). (ECF No. 25.) Plaintiff claims that the
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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

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certificate section of the application be completed, merely that a prisoner “shall submit a certified

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copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-

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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

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

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shall a 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
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).2 Andrews v. Cervantes, 493 F.3d 1047,

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1053−55 (9th Cir. 2007). In the complaint, which is 60 pages in length, Plaintiff alleges 24

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separate claims. The complaint is conclusory and contains a litany of grievances that include the

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following: the food served at USP Atwater is not nutritionally balanced, the cells are too small for

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double celling, there are potential threats to safety due to “shot caller” inmates who demand other

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inmates hand over certain paperwork, money has been illegally encumbered in Plaintiff’s trust

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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)).

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The Court expresses no opinion on the merits of Plaintiff’s claims.
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account, there is no classification system for separating gang and non-gang members, inmates are

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forced to change cells every 21 days, the commissary is not fully stocked to Plaintiff’s liking,

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strip searches are conducted, there are no typewriters for inmate usage, inmates are not provided

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free hygiene supplies, shortwave radios are banned, many television channels are blocked, all the

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mattresses are “shot,” inmates in segregation are denied books, physical body searches are

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conducted, the institution’s subscription to the Criminal Law Reporter was cancelled, lockdowns

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are excessive, there are fly infestations during warmer months, job assignments are on paper only

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and/or are not paid, the library does not have a book collection and should be providing inmates

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with tablets, Plaintiff was not notified about the existence of a class action about blood filters,

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Plaintiff was not provided medication to treat his anxiety and depression, a monetary incentive for

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completing a program was seized for restitution, there are not enough functioning washers and

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dryers for laundry, and not enough showers are allowed during lockdowns. (ECF No. 1.)

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Nowhere in the lengthy complaint, which appears to include every issue Plaintiff wishes

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to raise regarding his experiences in federal prisons, does Plaintiff allege that any of these

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grievances rises to a level that would create an imminent danger of serious physical injury to

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Plaintiff, or to any individual. For many of these claims, Plaintiff includes no explanation of how

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these issues affect him personally at all, much less in a way that could cause him imminent

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danger. Therefore, the Court finds that Plaintiff has failed to satisfy the exception from the three

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strikes bar under 28 U.S.C. § 1915(g). The complaint contains no allegations demonstrating that

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Plaintiff was in imminent danger of serious physical injury at the time the complaint was filed.

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III.

Conclusion and Order

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Based on the foregoing, the Court finds that Plaintiff is precluded from proceeding

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without prepayment of fees under section 1915(g) and that the complaint does not allege that he is

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in imminent danger.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s motion to void in forma pauperis filing, (ECF No. 25), is GRANTED;

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2. Within twenty-one (21) days from the date of service of this order, Plaintiff SHALL
either:

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a. Show cause in writing why this case should not be dismissed for failure to pay the

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filing fee; or

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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.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 18, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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