Hardaway v. Spearman et al
ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2017 DENYING 6 and 7 Motion to Proceed IFP. Plaintiff to submit, within 21 days from the date of this order, the appropriate filing fee. (Henshaw, R) Modified on 4/28/2017 (Donati, J).
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SONNY RAY HARDAWAY,
No. 2:16-cv-2219-WBS-EFB P
M.E. SPEARMAN, et al.,
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the
reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to
proceed in forma pauperis.
A prisoner may not proceed in forma pauperis:
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.
28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has
brought actions in this court while incarcerated that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See, e.g., Hardaway v. Pear, No. 1:071
cv-1664-LJO-SMS (E.D. Cal. Mar. 17, 2008) (designating plaintiff as a three-strikes litigant);
Hardaway v. Lockard, No. 1:07-cv-0204-LJO-WMW (E.D. Cal. Sept. 27, 2007) (same).
The section 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 v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to
apply, the court must look to the conditions the “prisoner faced at the time the complaint was
filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner
allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an
overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.
Plaintiff complains that he was transferred to a different prison and denied access to his
property, the chapel, and the courts, and that he is being served sugar-free food, which contains
aspartame, viewed as a “poison” by plaintiff. ECF No. 1. These allegations fail to demonstrate
that plaintiff faced an imminent danger of serious physical injury at the time he filed the
complaint. Thus, the imminent danger exception does not apply. Plaintiff’s application for leave
to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must
submit the appropriate filing fee in order to proceed with this action.
Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma
pauperis, it is hereby ORDERED that:
1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 6, 7) is denied; and
2. Plaintiff shall submit, within twenty-one days from the date of this order, the
appropriate filing fee. Plaintiff’s failure to comply with this order will result in a
recommendation of dismissal.
Dated: April 27, 2017.
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