Winfield v. Adams et al

Filing 20

ORDER signed by Magistrate Judge Allison Claire on 03/19/14 ordering because he is barred in this action from proceeding in forma pauperis under the 3 strikes provision, plaintiff's motion to proceed in forma pauperis 7 is denied. Plaintiff shall have 30 days from the date of this order to submit the $350.00 filing fee. There will be no extension of time. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL WINFIELD,

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No. 2:13-cv-1370 AC P

Plaintiff,
v.

ORDER

JACOB ADAMS, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This

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

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Plaintiff has consented to the jurisdiction of the undersigned. ECF No. 10.

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By Order filed on September 12, 2013, plaintiff was informed that the court must rule on

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his request for in forma pauperis status before proceeding to screening and consideration of

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amendment. ECF No. 11. In the September 12th order, the court identified four of plaintiff’s

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prior cases that qualified as “strikes” under the “three strikes” provision of 28 U.S.C. § 1915(g).

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Id. at 1-2. Plaintiff was therefore directed to show cause, within thirty days, why he should be

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allowed to proceed in this action in forma pauperis by demonstrating that he was in imminent

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danger of serious physical injury at the time of the filing of the instant complaint. In the

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alternative, plaintiff was directed to submit the statutory filing fee of $350.00 within thirty days in
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order to proceed in this action. Id. at 4. In addition, because plaintiff’s filings to date had failed

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to comply with Rule 8 of the Federal Rules of Civil Procedure, the court noted that should

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plaintiff either satisfy the imminent danger exception or pay the filing fee, he would be permitted

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to proceed only if he presented colorable claims in a further amended complaint. Id., n. 6.

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To meet the “imminent danger” exception, plaintiff was informed that he must have

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alleged facts that demonstrate he was “under imminent danger of serious physical injury” at the

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time of filing the complaint. See ECF No. 11, at 2-3, citing Andrews v. Cervantes, 493 F.3d

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1047, 1053 (9th Cir.2007) (“it is the circumstances at the time of the filing of the complaint that

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matters for purposes of the ‘imminent danger’ exception under § 1915(g))”; see also, Abdul–

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Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir.2001); Medberry v. Butler, 185 F.3d 1189,

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1192-93 (11th Cir.1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998); Banos v. O'Guin,

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144 F.3d 883, 884 (5th Cir.1998) (per curiam).

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Plaintiff has failed to satisfy this standard. Instead, he has filed numerous “notices” that

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refer to his “55 million dollar lawsuit” and identify individuals who have “slander[ed]” him and

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whom he wishes to name as defendants. See ECF Nos. 12-19. Plaintiff had previously been

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informed with respect to his allegations of slander that “[s]ection 1983 requires [plaintiff] to

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demonstrate a violation of federal law, not state law.” Galen v. County of Los Angeles, 477 F.3d

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652, 662 (9th Cir. 2007). ECF No. 11, n. 5. Plaintiff makes only the scantiest, most conclusory

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and formulaic allegations that he presently faces imminent danger. He makes no showing

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whatever that he was under imminent danger at the time of filing his complaint. The complaint

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itself claims that Dr. Adams made false statements in relation to a requested court order for

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involuntary psychiatric medication. Plaintiff alleges that he is “allergic to all psych drugs,” ECF

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No. 1 at 3, but provides no facts that indicate he faced serious physical injury should he be

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medicated.

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Because plaintiff has failed to demonstrate that he was in imminent danger of serious

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physical injury at the time he filed the instant complaint, his request to proceed in forma pauperis

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must be denied. The court will grant plaintiff one further opportunity to submit the statutory

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filing fee of $350.00. There will be no further extension of time. Failure to submit the filing fee
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timely will result in dismissal of this action.

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Accordingly, IT IS ORDERED that:

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1. Because he is barred from proceeding in forma pauperis in this action by the “three

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strikes” provision of 28 U.S.C. § 1915(g), plaintiff’s request to proceed in forma pauperis is

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denied;

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2. Plaintiff shall have thirty days from the date of this order to submit the $350.00 filing
fee;
3. There will be no extension of time. Failure to submit the filing fee timely will result in
dismissal of this action.
DATED: March 19, 2014

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