Langston v. Fox, et al.
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WALTER SHANE LANGSTON,
ROBERT A. FOX, et al.,
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c) and no other party has been served or appeared in the action. The court issued
an order to show cause on April 11, 2017, requiring plaintiff to show cause why this action
should not be dismissed.
The court found it had previously determined plaintiff is barred from proceeding
in forma pauperis pursuant to 28 U.S.C. § 1985(g), and that it did not appear that plaintiff was
under imminent danger of serious physical injury when he filed the complaint. Plaintiff has filed
a response to the order to show cause. In his response, plaintiff argues he alleged in his
complaint that he was placed in administrative segregation for safety concerns because inmates
had threatened him. Thus, he claims he was under imminent danger of serious physical injury
when he filed the complaint based on these threats. However, a review of the complaint does not
show plaintiff had made any allegation that he had been threatened by other inmates. In fact, he
states in the complaint that he was in administrative segregation based on a Rules Violation
Report (RVR) wherein he was charged with, and found guilty of, assault on an officer. He is
attempting to challenge the RVR, the administrative segregation placement, and the guilty
finding of a Division D offense.
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
alleged. See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009); Stine v. Federal Bureau of
Prisons, 20155 WL 5255377 (E.D. Cal. 9/9/15) (“[T]he Court will consider: ‘(1) whether the
imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to
unlawful conduct asserted in the complaint; and (2) whether a favorable judicial outcome would
redress that injury.’”) There is nothing in his complaint about being threatened by any other
inmate. Therefore, even if such threats were sufficient to meet the standard of a plausible
allegation of imminent danger of physical injury, without a nexus to the allegations alleged in the
complaint the undersigned finds plaintiff has not shown he has met the standard to proceed IFP.
Accordingly, IT IS HEREBY ORDERED 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.
DATED: May 23, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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