Bontemps v. Jochim et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2017 DENYING 5 and 6 plaintiff's applications to proceed in forma pauperis. Plaintiff to submit, within 21 days from the date of this order, the appropriate filing fee. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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No. 2:16-cv-2625-EFB P

Plaintiff,
v.

ORDER

S. JOCHIM, et al.,

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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. § 1983.1 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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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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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., Bontemps v. Sotak, No. 2:09-

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cv-2115-MCE-EFB (E.D. Cal. Mar. 30, 2015) (designating plaintiff as a three-strikes litigant);

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Bontemps v. Harper, No. 2:13-cv-506-MCE-EFB (E.D. Cal. June 2, 2016) (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 on July 11, 2016, he experienced two hours of severe pain in his

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fractured foot when he was denied access to his air pump for use with his air cast. ECF No. 1 at

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3. Although plaintiff wrote “imminent danger” on the cover of his complaint, see id. at 1, these

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allegations fail to demonstrate that he faced an imminent danger of serious physical injury at the

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time he filed the complaint, on November 3, 2016. Thus, the imminent danger exception does not

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apply. Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied

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pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with

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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. 5, 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 dismissal.

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Dated: April 27, 2017.

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