Howze v. Malmendier et al

Filing 12

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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J.L. HOWZE,

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No. 2:16-cv-1737 GEB KJN P
Plaintiff,

v.

ORDER

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RICK MALMENDIER, et al.,

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Defendant.

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Plaintiff filed a request for reconsideration under Rule 59(e) of the Federal Rules of Civil

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Procedure. Plaintiff contends that he submitted evidence in support of his request for leave to

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proceed in forma pauperis demonstrating that he is at risk of imminent danger based on his

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physical injuries.

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By order filed November 22, 2016, the undersigned found that plaintiff previously

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sustained three strikes under 28 U.S.C. § 1915(g), and required plaintiff to pay the filing fee in

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full in order to proceed with this action.

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If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from proceeding in

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forma pauperis unless he meets the exception for imminent danger of serious physical injury. See

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Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). The § 1915(g) exception applies if

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the complaint makes a plausible allegation that the prisoner faced “imminent danger of serious

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physical injury” at the time of filing. 28 U.S.C. § 1915(g); Andrews, 493 F.3d at 1055. Courts
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need “not make an overly detailed inquiry into whether the allegations qualify for the exception.”

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Id. at 1055; see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (“[Section] 1915(g) is

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not a vehicle for determining the merits of a claim. . . . [T]o fine-tune what is ‘serious enough’ to

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qualify for the exception . . . would result in a complicated set of rules about what conditions are

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serious enough, all for a simple statutory provision governing when a prisoner must pay the filing

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fee for his claim. This is not required. . . . ”). Rather, the court should liberally construe the pro

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se plaintiff's allegations to determine whether he has a plausible claim of imminent danger.

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Plaintiff argues he is in imminent danger of further physical injury resulting from

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defendants’ refusal to comply with his single cell chrono. (ECF No. 10-2 at 6.) Plaintiff suffers

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from benign prostatic hyperplasia, a serious medical condition, a key symptom of which is acute

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urinary retention, and if he cannot obtain urgent access to the toilet, can suffer rupturing blood

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vessels, pain, distended bladder, or supra-pubic herniation. In addition, plaintiff contends that

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defendants Brager and Malmendier also facilitated the imminent danger by impeding plaintiff’s

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efforts to pursue administrative relief. (ECF No. 10-2 at 7.) Plaintiff is pursuing his single cell

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claim in Lee v. Orozco, No. 2:16-cv-1738 AC (E.D. Cal.), and raises his due process claims in the

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instant action.

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Whether or not plaintiff has adequately alleged “imminent danger” is a close question.

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However, plaintiff demonstrated that he sustains pain and physical injury any time he is deprived

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of timely access to the toilet. Because this court liberally construes plaintiff's complaints, this

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court finds plaintiff has established an “imminent danger of serious physical injury” and qualifies

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for the exception to § 1915(g). Therefore, the November 22, 2016 order is vacated, and plaintiff

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will not be required to pay the full filing fee up front to proceed with this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By separate order, the court will screen plaintiff’s complaint.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 9) is granted; and

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2. The November 22, 2016 order (ECF No. 8) is vacated.

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Dated: May 2, 2017
/howz1737.850

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