Langston v. Frantzen et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WALTER SHANE LANGSTON
No. 2:16-cv-2364-GEB-EFB P
A. FRANTZEN, 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., Case Nos. 2:08-cv-2475-EFS,
2:10-cv-2196-EFB, 2:10-cv-2715-GGH, 2:10-cv-3191-KJN, and 2:11-cv-1624-DAD.
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.
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
“segregate housing unit” or “SHU.” ECF No. 1 at 44-49. He claims that the defendant, who is
no longer his doctor, caused him to be placed in the SHU from July 2, 2014 through May 5, 2015,
knowing that it caused him to have suicidal ideations. Id. at 45, 50, 55. 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 No. 6) 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 that this action be dismissed.
Dated: April 20, 2017.
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