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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 13 14 No. 2:16-cv-2625-EFB P Plaintiff, v. ORDER S. JOCHIM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 19 reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to 20 proceed in forma pauperis. 21 A prisoner may not proceed in forma pauperis: 22 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. 23 24 25 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 26 27 28 1 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). 1 1 brought actions in this court while incarcerated that were dismissed as frivolous, malicious, or for 2 failure to state a claim upon which relief may be granted. See, e.g., Bontemps v. Sotak, No. 2:09- 3 cv-2115-MCE-EFB (E.D. Cal. Mar. 30, 2015) (designating plaintiff as a three-strikes litigant); 4 Bontemps v. Harper, No. 2:13-cv-506-MCE-EFB (E.D. Cal. June 2, 2016) (same). 5 The section 1915(g) exception applies if the complaint makes a plausible allegation that 6 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 7 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to 8 apply, the court must look to the conditions the “prisoner faced at the time the complaint was 9 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 10 allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an 11 overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055. 12 Plaintiff complains that on July 11, 2016, he experienced two hours of severe pain in his 13 fractured foot when he was denied access to his air pump for use with his air cast. ECF No. 1 at 14 3. Although plaintiff wrote “imminent danger” on the cover of his complaint, see id. at 1, these 15 allegations fail to demonstrate that he faced an imminent danger of serious physical injury at the 16 time he filed the complaint, on November 3, 2016. Thus, the imminent danger exception does not 17 apply. Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied 18 pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with 19 this action. 20 21 Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma pauperis, it is hereby ORDERED that: 22 1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 5, 6) is denied; and 23 2. Plaintiff shall submit, within twenty-one days from the date of this order, the 24 appropriate filing fee. Plaintiff’s failure to comply with this order will result in dismissal. 25 Dated: April 27, 2017. 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?