Turner v. Woodland City Police Chief, et al

Filing 13

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/13/13 denying 8 Motion to Proceed IFP and this action is dismissed without prejudice to re-filing upon pre-payment of the $400.00 filing fee. CASE CLOSED. (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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ANTHONY R. G. TURNER,
Plaintiff,

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vs.

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No. 2:13-cv-905-EFB P

WOODLAND CITY POLICE, et al.,
ORDER
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is

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before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at

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(k)(4).

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For the reasons explained below, the court finds that plaintiff has not demonstrated he is
eligible to proceed in forma pauperis. A prisoner may not proceed 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 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.
28 U.S.C. § 1915(g).
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On at least three prior occasions, plaintiff has brought actions while incarcerated that

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were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be

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granted. See (1) Turner v. United States of America, 2:08-cv-2087, ECF No. 23 (Dec. 7, 2010

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Order dismissing action for failure to state a claim); (2) Turner v. Gibson, No. 1:11-cv-1395,

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ECF No. 25 (Apr. 13, 2012 Order dismissing action for failure to state a claim); (3) Turner v.

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Thomas, No. 2:10-cv-2369, ECF No. 19 (July 9, 2012 Order dismissing action for failure to state

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a claim and failure to prosecute); and (4) Turner v. Hubbard, No. 1:11-cv-1670, ECF No. 15

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(Nov. 21, 2012 Order dismissing action for failure to state a claim and failure to obey a court

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order).

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The section 1915(g) exception applies if the complaint makes a plausible allegation that

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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C.

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§ 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to

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apply, the court must look to the conditions the “prisoner faced at the time the complaint was

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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner

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allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an

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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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Here, plaintiff does not plausibly allege that he was under imminent threat of serious

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physical injury when he filed the complaint. Plaintiff complains of various discrete acts

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beginning in 2009. See, e.g., ECF No. 1 ¶ 1 (racial discrimination), ¶ 12 (denial of right to fair

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trial), ¶ 35 (denial of medical care), ¶ 37 (illegal sentence), ¶ 41 (filthy living conditions), ¶ 52,

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53 (sexual harassment and equal protection violation)). He also complains of alleged instances

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of excessive force in 2009 by Yolo County Police and retaliatory attacks in the Yolo County Jail.

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Plaintiff complains of further retaliation and excessive force in 2010 at Deuel Vocational

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Institute, in 2010 at Pelican Bay State Prison, and in 2011 and 2012 at Corcoran State Prison.

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When plaintiff filed his complaint on May 8, 2013, he was housed at Salinas Valley State Prison.

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ECF No. 1. Plaintiff does not allege that he faces an ongoing danger of excessive uses of force
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at Salinas Valley. Nor is there any apparent basis for finding that the allegedly retaliatory acts

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taken against plaintiff will continue at Salinas Valley. As for conditions at Salinas Valley,

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plaintiff alleges that a court declared him incompetent, placed him in a hospital, and that he is

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subject to a Keyhea order, requiring that he be forcibly medicated.1 Id. ¶ 88. Plaintiff claims

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that this exposes him to irreparable harm. Id. ¶ 95. But given plaintiff’s allegation that there is a

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Keyhea order in place, which authorizes prison officials to forcibly medicate plaintiff, the court

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cannot find it plausible that the Keyhea procedures place him at risk of imminent physical injury.

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See Washington v. Harper, 494 U.S. 210, 227 (1990) (allowing states “to treat a prison inmate

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who has a serious mental illness with antipsychotic drugs against his will, if the inmate is

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dangerous to himself or others and the treatment is in the inmate’s medical interest”). Thus, the

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imminent danger exception does not apply. Because plaintiff has not paid the filing fee and is

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not eligible to proceed in forma pauperis, this action must be dismissed.

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Accordingly, it is hereby ORDERED that plaintiff’s request for leave to proceed in forma

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pauperis is denied and this action is dismissed without prejudice to re-filing upon pre-payment of

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the $400 filing fee. See 28 U.S.C. §§ 1914(a), 1915(g).

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Dated: August 13, 2013.

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In Keyhea, the court upheld a consent decree affirming the right of state prisoners to
refuse psychotropic medications absent a judicial determination that a prisoner is incompetent to
refuse such medication. See Keyhea v. Rushen, 178 Cal.App.3d 526 (1986); In re Qawi, 32
Cal.4th 1, 21 (2004) (explaining that Keyhea procedures now codified in Cal. Pen. Code § 2600).
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