Langston v. Frantzen et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/20/2017 DENYING plaintiff's 6 application to proceed IFP; and plaintiff shall submit, within 21 days, the appropriate filing fee. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON

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No. 2:16-cv-2364-GEB-EFB P

Plaintiff,
v.

ORDER

A. FRANTZEN, 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., Case Nos. 2:08-cv-2475-EFS,

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2:10-cv-2196-EFB, 2:10-cv-2715-GGH, 2:10-cv-3191-KJN, and 2:11-cv-1624-DAD.

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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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In the October 3, 2016 complaint, plaintiff complains about proceedings related to a rules
violation report, a determination of guilt, and the resulting loss of credits and placement in the

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“segregate housing unit” or “SHU.” ECF No. 1 at 44-49. He claims that the defendant, who is

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no longer his doctor, caused him to be placed in the SHU from July 2, 2014 through May 5, 2015,

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knowing that it caused him to have suicidal ideations. Id. at 45, 50, 55. These allegations fail to

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

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

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leave 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 No. 6) 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 that this action be dismissed.

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Dated: April 20, 2017.

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