Harris v. Virga et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/17/12 recommending that plaintiff's motion to proceed in forma pauperis 7 be denied pursuant to 28 USC 1915(g); and this action be dismissed without prejudice. MOTION to PROCEED IN FORMA PAUPERIS 7 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, 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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MARVIN HARRIS,

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Plaintiff,

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No. 2: 12-cv-0838 GEB DAD P

vs.
TIM VIRGA, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a complaint filed pursuant to 42

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U.S.C. § 1983. He has also filed an application to proceed in forma pauperis under 28 U.S.C. §

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1915.

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The federal in forma pauperis statute includes a limitation on the number of

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actions in which a prisoner can proceed in forma pauperis. The statute provides as follows:

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In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under [§ 1915] 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
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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28 U.S.C. § 1915(g). On October 3, 2012, the court issued an order noting that plaintiff has on at
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least three occasions filed lawsuits in this court that were dismissed on the grounds that they

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were frivolous or failed to state a claim upon which relief may be granted. (See Dkt. No. 8 at p.

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1-2 (“Harris v. Edmonds, Civ. No. 00-5857 OWW LJO (E.D. Cal. Nov. 27, 2000) (order

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dismissing action for failure to state a claim upon which relief may be granted); Harris v.

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Edmonds, Civ. No. 00-7160 REC SMS (E.D. Cal. May 24, 2002) (order dismissing action for

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failure to state a claim); and Harris v. Pliler, Civ. No. 01-1125 WBS DAD (E.D. Cal. March 15,

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2002) (order dismissing action for failure to state a claim)”).

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There is an exception to the three-strike bar of § 1915(g) which allows a prisoner

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to proceed with a civil action despite three prior qualifying dismissals where the prisoner is under

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imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1056-57

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(9th Cir. 2007). However, the imminent danger exception applies only “if the complaint makes a

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plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the

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time of filing.” Id. at 1055 (emphasis added).

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Plaintiff’s complaint alleges a claim of personal injury arising from the adverse

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side effects caused by “valproate” and that his medical records have been falsified. (See Dkt. No.

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1 at p. 3.) However, he has failed to allege how these purported side effects cause him to face

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“imminent danger of serious physical injury” or how the purported falsification of his medical

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records cause him to face imminent danger of serious physical injury. In his complaint plaintiff

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does allege that his mail was given to another inmate. However, this alleged diversion of his

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mail does not plausibly suggest that plaintiff is facing an imminent danger of serious physical

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injury.

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The court’s October 3, 2012, order to show cause provided plaintiff an

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opportunity to explain how he had met the imminent danger provision of § 1915(g) and why his

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in forma pauperis application should not be denied pursuant to 28 U.S.C. § 1915(g). Plaintiff

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responded to the order to show cause with a description of a December 20, 2011 cell extraction

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during which, he alleges, he was subjected to excessive force. (See Dkt. No. 9 at p. 2-3.)
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Plaintiff’s description of this alleged incident wholly unrelated to the allegations of his complaint

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fails to explain how he is under threat of imminent danger of serious physical injury arising out

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of the allegations of his complaint. See Andrews, 493 F.3d at 1055 (“the exception applies if the

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complaint makes a plausible allegation. . .”) (emphasis added). Furthermore, describing one

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incident of excessive force that purportedly occurred approximately four months prior to the

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filing of the complaint in this civil rights action is insufficient to demonstrate that plaintiff is

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under imminent danger of serious physical injury as a result of the conditions he complains of in

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his complaint. See, e.g., id. (“we believe that requiring a prisoner ‘to allege [ ] an ongoing

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danger’ . . . is the most sensible way to interpret the imminency requirement”) (citation omitted).

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Therefore, Plaintiff should be precluded from proceeding in forma pauperis and dismissal of this

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action is appropriate.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 7.) be DENIED

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pursuant to 28 U.S.C. § 1915(g); and

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2. This action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 17, 2012.

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DAD:dpw
harr0838.57

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