Ramey v. Franco et al

Filing 43

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHNNEY RAMEY,

12
13
14
15

No. 2:16-cv-2107 JAM CKD P

Plaintiff,
v.

ORDER

J. FRANCO, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

18

U.S.C. § 1983. By findings and recommendations filed February 8, 2018, the undersigned

19

recommended granting defendant’s motion to revoke plaintiff’s in forma pauperis status because

20

he had accrued at least three strikes under 28 U.S.C. § 1915(g) and had not demonstrated that he

21

was under imminent danger of serious physical injury at the time he filed the operative complaint.

22

(ECF No. 39.) Plaintiff filed timely objections to the findings and recommendations (ECF No.

23

42), to which defendant has not responded.

24

In his objections, plaintiff alleges that although he had been moved to a building within

25

the prison where defendant did not work, he remained in the same prison, and defendant has once

26

again been assigned to work in the building where plaintiff is housed. (Id. at 2-3.) He further

27

alleges that because of defendant’s demonstrated disregard for previous instructions to stop

28

harassing plaintiff, there is a constant risk that defendant will reinitiate his harassment, leading to
1

1

sleep deprivation and hospitalization, as it did in the past. (Id. at 2-3, 5.) Though not clear, it

2

appears that plaintiff may be alleging that defendant has already resumed his retaliatory

3

harassment of plaintiff. (Id. at 2.) These facts are sufficient to demonstrate that plaintiff was

4

subject to an ongoing danger of serious physical injury at the time he filed the second amended

5

complaint and therefore falls within the imminent danger exception. Andrews v. Cervantes, 493

6

F.3d 1047, 1056-57 (9th Cir. 2007) (allegations of an ongoing danger meet the imminent danger

7

requirement); Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (“[I]t is sufficient for the

8

prisoner to allege that he faces an “ongoing danger,” even if he is not “directly exposed to the

9

danger at the precise time he filed the complaint.” (quoting Andrews, 493 F.3d at 1056)).

10

Accordingly, IT IS HEREBY ORDERED that:

11

1. The recommendation to grant defendant’s motion to revoke plaintiff’s in forma

12

pauperis status (ECF No. 39) is withdrawn.
2. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 28) is

13
14
15

denied.
3. Defendant shall file a response to the second amended complaint within twenty-one

16

days of the date of this order.

17

Dated: March 19, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

18
19
20

13:rame2107.withdraw.f&r

21
22
23
24
25
26
27
28
2