Langston v. Fox, et al.
Filing
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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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