Tanksley v. The Sacramento California Police Blacks and Whites Department et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2015 DENYING plaintiff's 2 application to proceed IFP; and this action is DISMISSED without prejudice to re-filing upon pre-payment of the $400.00 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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MOODY WOODROW TANKSLEY,

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No. 2:14-cv-2299-EFB P

Plaintiff,
ORDER1

v.
THE SACRAMENTO CALIFORNIA
POLICE BLACKS AND WHITES
DEPARTMENT, et al.,

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Defendants.

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Plaintiff Moody Woodrow Tanksley is a county inmate proceeding without counsel in an

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action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28

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U.S.C. § 1915(a). For the reasons explained below, he 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) Tanksley v. Tulare County Sheriff, No.

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1:03-cv-6593-AWI-WMW (E.D. Cal. July 7, 2006) (order dismissing action for failure to state a

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claim); (2) Tanksley v. CDCR, No. 2:08-cv-1608-GSA (E.D. Cal. Feb. 12, 2009) (order

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dismissing action for failure to state a claim); (3) Tanksley v. Avenal State Prison, No. 1:08-cv-

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0442-OWW-DLB (E.D. Cal. June 3, 2009) (order dismissing action for failure to state a claim);

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(4) Tanksley v. The People of The State of California, No. 1:09-cv-643-DLB, (E.D. Cal. Apr. 6,

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2010) (order dismissing action for failure to state a claim); and (5) Tanksley v. Blackwell, No.

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1:08-cv-0093-OWW-GBC (E.D. Cal. Feb. 9, 2011) (order dismissing action for failure to state a

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claim).

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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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Plaintiff was confined to county jail at the time he filed his complaint. His claims do not

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pertain to events or conditions at the jail but instead allege that prior to his incarceration, between

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August 2013 and September 2014, he called 9-1-1 when street gang members threatened to kill

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him if he did not leave Sacramento. He alleges that the police did nothing to help him. Plaintiff’s

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allegations do not demonstrate that he suffered from an ongoing or imminent danger of serious

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physical injury at the time he filed his complaint on October 2, 2014. Thus, the imminent danger

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exception does not apply. Plaintiff’s application for leave to proceed in forma pauperis must

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therefore be denied pursuant to § 1915(g).

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Accordingly, it is hereby ORDERED that

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is denied; and

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

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filing fee.

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DATED: April 27, 2015.

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