Hollis v. Bal et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/19/2014 DENYING plaintiff's 3 request to proceed IFP and DISMISSING this action, without prejudice, to a re-filing upon pre-payment of the $400 filing fee. CASE CLOSED. (Yin, K)

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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-2145-EFB P

Plaintiff,
v.

ORDER

J. BAL, 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). Plaintiff allegedly suffers from gastroesophogeal reflux disease,

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hypertension, chronic low back pain, degenerative disc disease disorder, shoulder pain, bilaterally

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flat feet, and impaired vision. ECF No. 1, ¶¶ 7, 8. He claims he was previously prescribed

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permanent chronos to accommodate these conditions. Id. ¶ 10. Despite the chronos, plaintiff

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claims he was denied waist restraints and orthotic boots from October 13, 2011 until June 20,

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2012. Id. ¶¶ 14, 19. He claims he was again denied orthotics on June 28, 2012. Id. ¶ 23. On

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June 21, 2013, however, defendant “ordered for plaintiff to be accommodated with orthotic shoes

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for 12 months, glasses for 12 months, and a[n] extra pillow and to be cuffed with waist chains

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both for 12 months.” Id. ¶ 22. In the complaint, plaintiff claims to be “under imminent danger of

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serious physical injury” and that he “is currently being denied any reasonable accommodations

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for his medical conditions and disabilit[ies].” Id. ¶ 46. This allegation is not sufficient to

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constitute facts showing a current imminent danger. Plaintiff specifically alleges that he was

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denied certain medical accommodations in 2011 and 2012. He admits that in 2013, those
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accommodations were restored. Plaintiff cannot meet the “imminent danger” exception to section

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1915(g) based on circumstances alleged to have existed well before the filing of the complaint.

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In this case, the imminent danger exception does not apply.

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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 19, 2014.

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