Howze v. Malmendier et al
ORDER signed by Magistrate Judge Kendall J. Newman on 5/2/2017 GRANTING plaintiff's 9 motion for reconsideration; and the 11/22/2016 Order 8 is VACATED. (Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-1737 GEB KJN P
RICK MALMENDIER, et al.,
Plaintiff filed a request for reconsideration under Rule 59(e) of the Federal Rules of Civil
Procedure. Plaintiff contends that he submitted evidence in support of his request for leave to
proceed in forma pauperis demonstrating that he is at risk of imminent danger based on his
By order filed November 22, 2016, the undersigned found that plaintiff previously
sustained three strikes under 28 U.S.C. § 1915(g), and required plaintiff to pay the filing fee in
full in order to proceed with this action.
If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from proceeding in
forma pauperis unless he meets the exception for imminent danger of serious physical injury. See
Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). The § 1915(g) exception applies if
the complaint makes a plausible allegation that the prisoner faced “imminent danger of serious
physical injury” at the time of filing. 28 U.S.C. § 1915(g); Andrews, 493 F.3d at 1055. Courts
need “not make an overly detailed inquiry into whether the allegations qualify for the exception.”
Id. at 1055; see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (“[Section] 1915(g) is
not a vehicle for determining the merits of a claim. . . . [T]o fine-tune what is ‘serious enough’ to
qualify for the exception . . . would result in a complicated set of rules about what conditions are
serious enough, all for a simple statutory provision governing when a prisoner must pay the filing
fee for his claim. This is not required. . . . ”). Rather, the court should liberally construe the pro
se plaintiff's allegations to determine whether he has a plausible claim of imminent danger.
Plaintiff argues he is in imminent danger of further physical injury resulting from
defendants’ refusal to comply with his single cell chrono. (ECF No. 10-2 at 6.) Plaintiff suffers
from benign prostatic hyperplasia, a serious medical condition, a key symptom of which is acute
urinary retention, and if he cannot obtain urgent access to the toilet, can suffer rupturing blood
vessels, pain, distended bladder, or supra-pubic herniation. In addition, plaintiff contends that
defendants Brager and Malmendier also facilitated the imminent danger by impeding plaintiff’s
efforts to pursue administrative relief. (ECF No. 10-2 at 7.) Plaintiff is pursuing his single cell
claim in Lee v. Orozco, No. 2:16-cv-1738 AC (E.D. Cal.), and raises his due process claims in the
Whether or not plaintiff has adequately alleged “imminent danger” is a close question.
However, plaintiff demonstrated that he sustains pain and physical injury any time he is deprived
of timely access to the toilet. Because this court liberally construes plaintiff's complaints, this
court finds plaintiff has established an “imminent danger of serious physical injury” and qualifies
for the exception to § 1915(g). Therefore, the November 22, 2016 order is vacated, and plaintiff
will not be required to pay the full filing fee up front to proceed with this action. 28 U.S.C.
§§ 1914(a), 1915(b)(1). By separate order, the court will screen plaintiff’s complaint.
Therefore, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for reconsideration (ECF No. 9) is granted; and
2. The November 22, 2016 order (ECF No. 8) is vacated.
Dated: May 2, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?