Hicks v. Bobballa et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/19/15 ORDERING that 2 Motion to Proceed IFP is DENIED; This action is dismissed without prejudice to re-filing upon pre-payment of the $400 filing fee.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HICKS,

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Plaintiff,

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No. 2:15-cv-1332-EFB P

v.

ORDER

M. BOBBALLA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983,1 requests leave to proceed in forma pauperis. He concedes that he is a three strikes

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litigant pursuant to 28 U.S.C. § 1915(g).2 ECF No. 1 at 1. Because plaintiff does not qualify for

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the exception to § 1915(g), his application to proceed in forma pauperis must be denied and this

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action dismissed.

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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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Court records confirm that plaintiff has been designated a three strikes litigant. See
Hicks v. Virga, No. 2:11-cv-405-MCE-CMK (E.D. Cal. Apr. 20, 2011).

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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). The section 1915(g) exception applies if the complaint makes a plausible

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allegation that the prisoner faced “imminent danger of serious physical injury” at the time of

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filing. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the

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exception to apply, the court must look to the conditions the “prisoner faced at the time the

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complaint was filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056

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(requiring that prisoner allege “an ongoing danger” to satisfy the imminency requirement).

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Plaintiff’s complaint does not show that he faced an imminent danger of serious physical

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injury at the time of filing. He alleges that a physical therapist recommended he receive cervical

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traction physical therapy three times a week for his cervical spondylosis. The physical therapist

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apparently noted that plaintiff’s condition, which causes pain, neck stiffness, and intermittent

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immobility to the left arm, was unlikely to improve without the therapy. Plaintiff alleges that he

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has received physical therapy at least once a month for the three months preceding the filing of

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his complaint. Although plaintiff complains of the pain and discomfort caused by his condition,

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and describes his physical therapy as “minimal,” it does not appear as though he faced an ongoing

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or imminent danger of serious physical injury when he filed the complaint. See Oden v. Cambra,

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C 97-3898-SI, 1999 U.S. Dist. LEXIS 4233, at *11 (N.D. Cal. Mar. 30, 1999) (“doctors (inside

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and outside of prisons) are not guarantors of pain-free living for their patients. There may be

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conditions . . . that will result in some pain regardless of what a doctor does”); Villegas v. Cate,

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1:10-cv1916-AWI-SKO, 2012 U.S. Dist. LEXIS 171, at *8 (E.D. Cal. Jan. 3, 2012) (“There are

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certain medical conditions with no end-cure and for which it is impossible to achieve a pain-free

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or symptom-free status.”); see also Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“It would

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be nice if after appropriate medical attention pain would immediately cease, its purpose fulfilled;

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but life is not so accommodating. Those recovering from even the best treatment can experience
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pain.”). Thus, the imminent danger exception does not apply. Plaintiff’s application for leave to

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proceed in forma pauperis must 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.
DATED: October 19, 2015.

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