Langston v. Fox, et al.

Filing 13

ORDER signed by Magistrate Judge Craig M. Kellison on 5/23/17 ORDERING that this action is DISMISSED without prejudice to re-filing upon pre-payment of the filing fees; and The Clerk of the Court is directed to close this case. CASE CLOSED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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Plaintiff,
vs.

ORDER

ROBERT A. FOX, et al.,
Defendants.

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No. 2:15-cv-1500-CMK-P

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) and no other party has been served or appeared in the action. The court issued

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an order to show cause on April 11, 2017, requiring plaintiff to show cause why this action

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should not be dismissed.

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The court found it had previously determined plaintiff is barred from proceeding

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in forma pauperis pursuant to 28 U.S.C. § 1985(g), and that it did not appear that plaintiff was

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under imminent danger of serious physical injury when he filed the complaint. Plaintiff has filed

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a response to the order to show cause. In his response, plaintiff argues he alleged in his

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complaint that he was placed in administrative segregation for safety concerns because inmates
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had threatened him. Thus, he claims he was under imminent danger of serious physical injury

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when he filed the complaint based on these threats. However, a review of the complaint does not

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show plaintiff had made any allegation that he had been threatened by other inmates. In fact, he

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states in the complaint that he was in administrative segregation based on a Rules Violation

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Report (RVR) wherein he was charged with, and found guilty of, assault on an officer. He is

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attempting to challenge the RVR, the administrative segregation placement, and the guilty

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finding of a Division D offense.

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The undersigned agrees with other courts in determining there must be some
nexus between at least one cause of action in the complaint and the plausible imminent danger

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alleged. See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009); Stine v. Federal Bureau of

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Prisons, 20155 WL 5255377 (E.D. Cal. 9/9/15) (“[T]he Court will consider: ‘(1) whether the

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imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to

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unlawful conduct asserted in the complaint; and (2) whether a favorable judicial outcome would

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redress that injury.’”) There is nothing in his complaint about being threatened by any other

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inmate. Therefore, even if such threats were sufficient to meet the standard of a plausible

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allegation of imminent danger of physical injury, without a nexus to the allegations alleged in the

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complaint the undersigned finds plaintiff has not shown he has met the standard to proceed IFP.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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This action is dismissed without prejudice to re-filing upon pre-payment of

the filing fees; and
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The Clerk of the Court is directed to close this case.

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DATED: May 23, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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