Bivins v. Hill et al

Filing 4

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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JOSEPH BIVINS,

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No. 2:15-cv-0748-EFB P
Plaintiff,

v.

ORDER

R. HILL, et al.,

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Defendants.

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Plaintiff Joseph Bivins is a state prisoner proceeding without counsel in an action brought

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under 42 U.S.C. § 1983.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

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

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to 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.
28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has
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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 (ECF No. 1 at 22). See
E.D. Cal. Local Rules, Appx. A, at (k)(4).
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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) Bivins v. Richmond Police Dep’t, No.

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3:00-cv-0047-TEH, 2000 U.S. Dist. LEXIS 545 (N.D. Cal. Jan. 14, 2000) (§ 1915A screening

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order dismissing action as untimely, citing Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.

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1984))2; (2) Bivins v. Contra Costa City, No. C 08-cv-2570-MHP, 2009 U.S. Dist. LEXIS 56696

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(N.D. Cal. June 30, 2009) (order dismissing action for failure to state a claim); and (3) Bivins v.

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Martinez County Jail, No. 3:11-cv-2673-JW (N.D. Cal. Jan. 19, 2012) (order dismissing action as

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duplicative and frivolous).

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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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Here, plaintiff alleges that in February of 2013, another inmate attacked him. As a result,

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plaintiff was allegedly placed in administrative segregation and issued a rules violation report.

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Plaintiff claims to have been denied due process in the related disciplinary proceedings. He also

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claims that in early 2014, he was denied adequate medical treatment for his hepatitis C, but that

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he was then transferred to another prison. He further claims that he has been denied access to the

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courts because many of his administrative appeals have been “blocked.”

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Franklin explains that “[w]here a plaintiff raises a defense that would defeat the action,
the complaint fails to state a claim on which relief may be granted.” Accordingly, this order of
dismissal qualifies as a strike for purposes 28 U.S.C. § 1915(g). See also Jones v. Bock, 549 U.S.
199, 215 (2007) (if allegations are barred by the statute of limitations, complaint is subject to
dismissal for failure to state a claim).
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Plaintiff’s allegations do not demonstrate that he suffered from an ongoing or imminent

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danger of serious physical injury at the time he filed his complaint. 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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