Dearwester v. California Department of Corrections and Rehabilitation et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 9/22/2015 DENYING plaintiff's 2 , 6 request to proceed IFP. Plaintiff shall, within 30 days, submit $400.00 to the Clerk to commence this action and obtain review of his complaint. Failure to comply will result in dismissal of this action without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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No. 2:15-cv-00445 AC P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a state prisoner at California State Prison Corcoran (CSP-COR), under the

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authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff

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proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, together with a

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request to proceed in forma pauperis. Plaintiff has consented to the jurisdiction of the

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undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule

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305(a). See ECF No. 5.

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Court records reveal that plaintiff has been designated a “three-strikes litigant” under 28

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U.S.C. § 1915(g). On May 28, 2015, in Dearwester v. CDCR et al., Case No. 1:15-cv-00694

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MJS P, Magistrate Judge Seng issued an “Order Denying Motion to Proceed In Forma Pauperis

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and Requiring Payment of Filing Fee in Full,” based on his finding that plaintiff had, in 2013,

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filed at least four cases which were dismissed for failure to state a claim. See id., ECF No. 6 at 2
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n.1 and related text. Each case was dismissed prior to plaintiff filing the complaint in this action.
Under Section 1915(g), a prisoner is precluded from proceeding in forma pauperis in a

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federal civil action if “the prisoner has, on 3 or more prior occasions, while incarcerated or

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detained in any facility, brought an action or appeal in a court of the United States that was

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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief

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may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g).

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Therefore, as a three-strikes litigant, plaintiff is precluded from proceeding in forma
pauperis in this action unless his complaint demonstrates that he was under “imminent danger of

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serious physical injury” when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v.

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Cervantes, 493 F.3d 1047 (9th Cir. 2007). This court is required to assess the relevant

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circumstances and conditions at the time the complaint was filed, to determine “whether the

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complaint, as a whole, alleges imminent danger of serious physical injury.” Andrews, 493 F.3d at

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1053 (citation and internal quotation marks omitted). The danger must be ongoing to meet the

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imminence requirement. Id. at 1056. “[A] prisoner who alleges that prison officials continue

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with a practice that has injured him or others similarly situated in the past will satisfy the

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‘ongoing danger’ standard and meet the imminence prong of the three-strikes exception.” Id. at

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1056-57. Allegations that are overly speculative or fanciful may be rejected. Id. at 1057 n.11.

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The alleged imminent danger must be real and proximate. Ciarpaglini v. Saini, 352 F.3d 328, 330

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(7th Cir. 2003).

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In the present case, the complaint challenges only the failure of CDCR officials to return

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all of plaintiff’s personal property, which was apparently inventoried and partly confiscated when

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plaintiff was moved from general to segregated housing at California State Prison Lancaster

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(CSP-LAC) in March 2014; and from CSP-LAC to CSP-COR in June 2014, via the reception

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center at Deuel Vocational Institute (DVI). Plaintiff contends that his unreturned property

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includes books, food, stationary, envelopes and writing tablets. The complaint alleges a due

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process claim and seeks only injunctive relief (“mandating that defendant[s] return all of my

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stated property to me”). ECF No. 1 at 3.
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The court finds that the allegations of the complaint fail to demonstrate that plaintiff was

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in imminent danger of serious physical injury when he filed the complaint. Therefore, under 28

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U.S.C. § 1915(g), plaintiff may not proceed in forma pauperis in this action but must pay the

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required filing fee of $350.00 plus the $50.00 administrative fee. 1

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s requests to proceed in forma pauperis in this action, ECF No. 2 & 6, are

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denied.2

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2. Plaintiff shall, within thirty days after the filing date of this order, submit $400.00 to
the Clerk of Court to commence this action and obtain review of his complaint pursuant to 28
U.S.C. § 1915A.

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3. Failure to comply with this order will result in the dismissal of this action without

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prejudice.

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DATED: September 22, 2015

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Litigants proceeding in forma pauperis are not required to pay the $50.00 administrative fee.
Although the court denies plaintiff’s requests to proceed in forma pauperis under the threestrikes statute, 28 U.S.C. § 1915(g), the court notes that the requests themselves are incomplete.
Neither request includes a certified copy of plaintiff’s prison trust account statement for the sixmonth period preceding the filing of the complaint or certification by a prison official on the
application form itself. See 28 U.S.C. § 1915(a)(2).
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