Ramey v. Franco et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/19/2018 WITHDRAWING the 39 recommendations to grant defendant's motion to revoke plaintiff's ifp status and DENYING defendant's 28 motion to revoke plaintiff's ifp status. Defendant shall file a response to the second amended complaint within 21 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHNNEY RAMEY,
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No. 2:16-cv-2107 JAM CKD P
Plaintiff,
v.
ORDER
J. FRANCO, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
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U.S.C. § 1983. By findings and recommendations filed February 8, 2018, the undersigned
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recommended granting defendant’s motion to revoke plaintiff’s in forma pauperis status because
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he had accrued at least three strikes under 28 U.S.C. § 1915(g) and had not demonstrated that he
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was under imminent danger of serious physical injury at the time he filed the operative complaint.
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(ECF No. 39.) Plaintiff filed timely objections to the findings and recommendations (ECF No.
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42), to which defendant has not responded.
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In his objections, plaintiff alleges that although he had been moved to a building within
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the prison where defendant did not work, he remained in the same prison, and defendant has once
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again been assigned to work in the building where plaintiff is housed. (Id. at 2-3.) He further
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alleges that because of defendant’s demonstrated disregard for previous instructions to stop
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harassing plaintiff, there is a constant risk that defendant will reinitiate his harassment, leading to
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sleep deprivation and hospitalization, as it did in the past. (Id. at 2-3, 5.) Though not clear, it
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appears that plaintiff may be alleging that defendant has already resumed his retaliatory
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harassment of plaintiff. (Id. at 2.) These facts are sufficient to demonstrate that plaintiff was
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subject to an ongoing danger of serious physical injury at the time he filed the second amended
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complaint and therefore falls within the imminent danger exception. Andrews v. Cervantes, 493
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F.3d 1047, 1056-57 (9th Cir. 2007) (allegations of an ongoing danger meet the imminent danger
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requirement); Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (“[I]t is sufficient for the
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prisoner to allege that he faces an “ongoing danger,” even if he is not “directly exposed to the
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danger at the precise time he filed the complaint.” (quoting Andrews, 493 F.3d at 1056)).
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Accordingly, IT IS HEREBY ORDERED that:
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1. The recommendation to grant defendant’s motion to revoke plaintiff’s in forma
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pauperis status (ECF No. 39) is withdrawn.
2. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 28) is
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denied.
3. Defendant shall file a response to the second amended complaint within twenty-one
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days of the date of this order.
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Dated: March 19, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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13:rame2107.withdraw.f&r
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