Hardaway v. Spearman et al

Filing 8

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).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,

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No. 2:16-cv-2219-WBS-EFB P

Plaintiff,
v.

ORDER

M.E. SPEARMAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the
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reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to
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proceed in forma pauperis.
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A prisoner may not proceed in forma pauperis:
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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.

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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has

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brought actions in this court while incarcerated that were dismissed as frivolous, malicious, or for

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failure to state a claim upon which relief may be granted. See, e.g., Hardaway v. Pear, No. 1:071

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cv-1664-LJO-SMS (E.D. Cal. Mar. 17, 2008) (designating plaintiff as a three-strikes litigant);

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Hardaway v. Lockard, No. 1:07-cv-0204-LJO-WMW (E.D. Cal. Sept. 27, 2007) (same).

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The section 1915(g) exception applies if the complaint makes a plausible allegation that

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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C.

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§ 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to

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apply, the court must look to the conditions the “prisoner faced at the time the complaint was

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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner

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allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an

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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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Plaintiff complains that he was transferred to a different prison and denied access to his

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property, the chapel, and the courts, and that he is being served sugar-free food, which contains

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aspartame, viewed as a “poison” by plaintiff. ECF No. 1. These allegations fail to demonstrate

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that plaintiff faced an imminent danger of serious physical injury at the time he filed the

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complaint. Thus, the imminent danger exception does not apply. Plaintiff’s application for leave

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to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must

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submit the appropriate filing fee in order to proceed with this action.

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Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma
pauperis, it is hereby ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 6, 7) is denied; and

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2. Plaintiff shall submit, within twenty-one days from the date of this order, the

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appropriate filing fee. Plaintiff’s failure to comply with this order will result in a

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recommendation of dismissal.

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Dated: April 27, 2017.

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