Hollis v. Sahota et al

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/20/14 ordering that plaintiff's request for leave to proceed in forma pauperis 7 is denied 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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,

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No. 2:13-cv-1841-EFB P

Plaintiff,
v.

ORDER

P. SAHOTA, et al.,

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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. § 1983.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the

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reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to

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proceed in forma pauperis.

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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.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has

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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to

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state a claim upon which relief may be granted. See (1) Hollis v. Mazon-Alec, 1:03-cv-6842-

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REC-DLB P (E.D. Cal. Jan. 27, 2005) (order dismissing action for failure to state a claim); (2)

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Hollis v. Villanueus, 3:07-cv-04538 (N.D. Cal. Feb. 2, 2009) (order dismissing action for failure

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to state a claim); (3) Hollis v. Villanueus, 08-15523 (9th Cir. Aug 26, 2009) (order dismissing

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appeal after district court found appeal to be frivolous), (see Hollis v. Villanueus, 3:07-cv-04538

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(N.D. Cal.) (Apr. 7, 2009 order denying application to proceed in forma pauperis on appeal as

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frivolous)); see also Hollis v. Downing, No. 2:09-cv-3431-MCE-KJN, 2010 U.S. Dist. LEXIS

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130441 (E.D. Cal. Dec. 8, 2010), adopted by 2011 U.S. Dist. LEXIS 14078 (E.D. Cal. Feb. 10,

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2011) (designating plaintiff a three-strike litigant).

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Further, it does not appear that plaintiff was under imminent threat of serious physical

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injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d

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1047, 1055 (9th Cir. Cal. 2007) (section 1915(g) imminent danger exception applies where

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complaint makes a “plausible” allegation that prisoner faced imminent danger of serious physical

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injury at the time of filing). In the complaint, plaintiff states he “in imminent danger of serious

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physical injury [because he] has lumbar degenerative disk disease with arthritic facets and lumbar

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spinal stenosis which is becoming worse.” ECF No. 1 ¶ 23. He alleges he has a history of being

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prescribed Tramadol to relieve his chronic back and shin pain, caused by his condition. A

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medical record attached to the complaint notes that plaintiff’s disease is “probably what is

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causing his pain.” Id. at 20. Plaintiff claims that for a two-week period of time, he felt “increased

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extreme[e] pain” because defendants interfered with his Tramadol prescription. After plaintiff

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complained, however, his Tramadol prescription was renewed. Now, however, plaintiff claims

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that the medical treatment he is receiving, including the Tramadol, is not relieving “100%” of his

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pain. ECF No. 1 ¶ 15. Thus, plaintiff is currently receiving tramadol, but still experiences some

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pain. Plaintiff’s allegation that he is not entirely pain-free does not demonstrate that he was under

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imminent threat of serious physical injury when he filed the complaint. Therefore, the imminent

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danger exception does not apply. See Oden v. Cambra, C 97-3898-SI, 1999 U.S. Dist. LEXIS
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4233, at *11 (N.D. Cal. Mar. 30, 1999) (“doctors (inside and outside of prisons) are not

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guarantors of pain-free living for their patients. There may be conditions . . . that will result in

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some pain regardless of what a doctor does”); Villegas v. Cate, 1:10-cv-1916-AWI-SKO, 2012

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U.S. Dist. LEXIS 171, at *8 (E.D. Cal. Jan. 3, 2012) (“There are certain medical conditions with

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no end-cure and for which it is impossible to achieve a pain-free or symptom-free status.”); see

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also Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“It would be nice if after appropriate

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medical attention pain would immediately cease, its purpose fulfilled; but life is not so

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accommodating. Those recovering from even the best treatment can experience pain.”).

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Because plaintiff has not paid the filing fee and is 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), 1914 (District Court Miscellaneous Fee Schedule,

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No. 14), 1915(g).

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DATED: May 20, 2014.

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