Hunter v. Kalwinder et al

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/25/17 DENYING 2 and 10 Motions to Proceed IFP; Plaintiff shall submit, within 21 days from the date of this order, the appropriate filing fee. Plaintiff's failure to comply with this order will result in the dismissal of this action.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SAMPSON HUNTER, 12 13 14 No. 2:16-cv-1041-EFB P Plaintiff, v. ORDER KARA KALWINDER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 19 reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to 20 proceed in forma pauperis. 21 A prisoner may not proceed in forma pauperis: 22 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. 23 24 25 28 U.S.C. § 1915(g). Court records reflect that plaintiff has been designated a three-strikes 26 27 28 1 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). 1 1 litigant for purposes of § 1915(g). See Hunter v. Paetzold, No. 5:14-cv-3233-PDG (Dec. 4, 2014, 2 N.D. Cal.). The section 1915(g) exception applies if the complaint makes a plausible allegation 3 that the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 4 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception 5 to apply, the court must look to the conditions the “prisoner faced at the time the complaint was 6 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 7 allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an 8 overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055. 9 According to the complaint and its exhibits, a doctor told plaintiff in December 2015 that 10 he does not have a prostate infection, took a urine sample and a blood draw, and referred plaintiff 11 for an ultrasound. ECF No. 1 at 8-9. 2 Plaintiff alleges that the doctor “failed to respond 12 reasonably to treat plaintiff’s prostate infection.” Id. at 4. These allegations demonstrate a 13 difference of opinion between plaintiff and his medical provider. They do not demonstrate that 14 plaintiff suffered from an ongoing or imminent danger of serious physical injury at the time he 15 filed his complaint. Thus, the imminent danger exception does not apply. 16 In addition, plaintiff’s claims of “imminent danger,” filed three months after the complaint 17 and concerning events that post-date the complaint, are not relevant to the section 1915(g) 18 analysis. See ECF Nos. 13 & 14. 19 Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied 20 pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with 21 this action. 22 23 Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma pauperis, it is hereby ORDERED that: 24 1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 2 & 10) is denied; and 25 ///// 26 ///// 27 2 28 This and subsequent page number citations to plaintiff’s complaint are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff. 2 1 2. Plaintiff shall submit, within twenty-one days from the date of this order, the 2 appropriate filing fee. Plaintiff’s failure to comply with this order will result in the dismissal of 3 this action. 4 Dated: January 25, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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