Shields v. Phelps et al

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/17/12 ORDERING that plaintiff is directed to pay the $350 filing fee for this action within 21 days; and failure to pay the filing fee will result in a recommendation that this action be dismissed.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REMON SHIELDS,

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Plaintiff,
vs.
S.M. PHELPS, et al.,
Defendants.

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No. CIV S-12-0126 CKD P

ORDER
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Plaintiff, a California prisoner proceeding pro se, has filed a complaint alleging a

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violation of civil rights under 28 U.S.C. § 1983. Plaintiff has not, however, paid the $350.00

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filing fee. Good cause appearing, plaintiff will be granted 21 days within which to pay the filing

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fee. If the filing fee is not submitted to the court within 21 days, the court will recommend that

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this action be dismissed.

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Ordinarily, plaintiff would have to option of filing an application to proceed in

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forma pauperis. However, plaintiff is precluded from proceeding in forma pauperis under 28

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U.S.C. § 1915(g). That statute reads:

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In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding [in forma pauperis] if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
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frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
physical injury.

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Court records reveal that plaintiff had at least three actions dismissed for failure to

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state a claim upon which relief can be granted well before this action was commenced. Two of

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those actions were in this court: 1) Shields v. Cal. Dep’t of Corrections and Rehab., No. 2:02-cv-

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0542 WBS JFM P, dismissed December 12, 2002; and 2) Shields v. Pliler, No. 2:02-cv-1150

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GEB JFM P, dismissed October 7, 2003. The other was in the United States District Court for

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the Central District of California: Shields v. Alameida, No. CV-03-808 AHM (Mc), dismissed

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August 14, 2003.

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Accordingly, plaintiff has “struck out” pursuant to 28 U.S.C. § 1915(g). Further,

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the court has reviewed plaintiff’s complaint and finds there is no reasonable suggestion that

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plaintiff is “under imminent danger of serious physical injury.” Plaintiff seeks an injunction

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against the California Department of Corrections and Rehabilitation in which the court orders

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prison officials to house plaintiff apart from members of prison gangs. Safety is only one of the

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reasons alleged by plaintiff for seeking the injunction. To the extent safety is a concern, plaintiff

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fails to allege that he has ever been subjected to violence from a gang member and, more

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importantly, he fails to point to anything specific and non-conclusory which reasonably suggests

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he is under imminent danger of serious physical injury as a result of his current housing

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assignment or in any other respect. See Manago v. Gonzalez, No. 1:11-cv-1269 GBC (PC), 2012

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WL 439404, at *2 (E.D. Cal. February 9, 2012) (“A prisoner seeking to invoke the imminent

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danger exception . . . must make specific, credible allegation of imminent danger of serious

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physical harm.).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff is directed to pay the $350 filing fee for this action within 21 days;

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and

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/////
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2. Failure to pay the filing fee will result in a recommendation that this action be
dismissed.
Dated: February 17, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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