Williams v. Jinkerson, et al.

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/25/2014 RECOMMENDING that plaintiff's 4 application to proceed IFP be denied; and this action be dismissed without prejudice to re-filing upon pre-payment of the $400.00 fee. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LONNIE WILLIAMS,

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No. 2:14-cv-0838-MCE-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JINKERSON, et al.,
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. Plaintiff seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For

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

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proceed in forma pauperis. A prisoner may not proceed in forma pauperis,

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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).

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On at least three prior occasions, plaintiff has brought actions while incarcerated that were

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

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See (1) Williams v. Andrews, 1:01-cv-6222 REC HGB P (E.D. Cal. Feb. 22, 2002) (order

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dismissing action for failure to state a claim); (2) Williams v. Wood, 1:01-cv-6151 REC LJO P
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(E.D. Cal. Feb. 28, 2002) (order dismissing action with prejudice for failure to state a claim); and

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(3) Williams v. Rendon, 1:01-cv-5891 AWI SMS P (E.D. Cal. Mar. 18, 2002) (order dismissing

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action for failure to state a claim). See also Williams v. Gonzales, 1:03-cv-6770 REC WMW P

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(E.D. Cal. Sept. 10, 2004) (order designating plaintiff as a three strikes litigant under 28 U.S.C.

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§ 1915(g)).

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According to the complaint filed in this action, plaintiff is in imminent danger because the

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defendants are attempting to murder her “with poisons, biological agents, toxins, bacterias, saliva,

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and medications.” ECF No. 1, § V and p.8. However, § 1915(g)’s exception does not apply

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because plaintiff’s allegations of imminent danger are not plausible. See Andrews v. Cervantes,

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493 F.3d 1047, 1055 (9th Cir. Cal. 2007) (section 1915(g) imminent danger exception applies

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

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physical injury at the time of filing.). Indeed, the court has informed plaintiff on numerous

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occasions that her allegations about being poisoned are not plausible. See Williams v. Bauer, No.

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2:12-cv-2158-MCE-EFB (E.D. Cal. Jan. 30, 2013) (finding plaintiff’s allegations of being

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poisoned implausible and denying application to proceed in forma pauperis); Williams v. Norton,

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2:12-cv-2889-CKD (E.D. Cal. Dec. 4, 2012) (same); Williams v. CDCR, 2:12-cv-1616-JAM-

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EFB (E.D. Cal. Aug 1. 2012) (finding implausible plaintiff’s allegations of being poisoned, and

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recommending that plaintiff’s in forma pauperis status be denied), adopted (E.D. Cal. Oct. 29,

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2012); Williams v. Willie, CIV S-11-1532-MCE-DAD (E.D. Cal. Mar. 16, 2012) (finding

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implausible plaintiff’s allegations of being poisoned, noting that she had been making such claims

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since 2006, and determining that the imminent danger exception of § 1915(g) did not apply),

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adopted (E.D. Cal. Apr. 23, 2012); Williams v. Gomez, 2:11-cv-0426-GEB-EFB (E.D. Cal. Dec.

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21, 2011) (finding implausible plaintiff’s allegations of being poisoned and denied HIV

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medication, and recommending that plaintiff’s in forma pauperis status be revoked), adopted

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(E.D. Cal. Feb. 6, 2012), aff’d (9th Cir. Aug. 5, 2013). Plaintiff’s application for leave to proceed

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in forma pauperis must therefore be denied pursuant to § 1915(g).

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Moreover, the “court has the inherent power to restrict a litigant’s ability to commence
abusive litigation in forma pauperis.” Visser v. Supreme Court of California, 919 F.2d 113, 114
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(9th Cir. 1990) (citing In re McDonald, 489 U.S. 180 (1989)). Despite the numerous dismissals,

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listed above, plaintiff continues to initiate lawsuits in forma pauperis, such as this one, on the

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grounds that the imminent danger exception applies based on her allegations of being poisoned on

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a daily basis. See, e.g., Williams v. Bal, 2:12-cv-1005-LKK-EFB (E.D. Cal) (April 17, 2012

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complaint alleging imminent danger of injury or death because she was denied HIV medication

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and prison officials were poisoning her food); Williams v. Wedell, 2:12-cv-1438-GEB-GGH (E.D.

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Cal.) (May 29, 2012 complaint alleging denial of HIV medication and imminent danger because

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of poisoning); Williams v. Nappi, 2:12-cv-1604-GEB-CMK (E.D. Cal.) (June 14, 2012 complaint

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alleging imminent danger because of daily poisoning); Williams v. CDCR, 2:12-cv-1616-JAM-

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EFB (E.D. Cal.) (June 15, 2012 complaint alleging the same). Given these filings, the court finds

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that plaintiff’s application for leave to proceed in forma pauperis should also be denied because

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plaintiff has “engaged in a pattern of litigation which is manifestly abusive.” Visser, 919 F. 2d at

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114.

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Accordingly, it is hereby RECOMMENDED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 4) be denied; and

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2. This action be dismissed without prejudice to re-filing upon pre-payment of the $400

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filing fee.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party 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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 25, 2014.

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