Bontemps v. Baker, et al.

Filing 5

ORDER signed by Magistrate Judge Craig M. Kellison on 5/12/2017 DENYING 4 Motion to Proceed IFP. Plaintiff to show cause in writing, within 30 days of the date of this order, why this action should not be dismissed without prejudice to re-filing upon pre-payment of filing fees. (Henshaw, R)

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IN THE 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-2814-CMK-P

Plaintiff,
vs.

ORDER

BAKER, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) and no other party has been served or appeared in the action. Pending before the

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court is plaintiff’s motion for leave to proceed in forma pauperis (Doc. 4).

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The Prison Litigation Reform Act’s (PLRA) “three strikes” provision provides:

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In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action . . . in a
court of the United States that was dismissed on the ground 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). Thus, when a prisoner plaintiff has had three or more prior actions
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dismissed for one of the reasons set forth in the statute, such “strikes” preclude the prisoner from

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proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas

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petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122

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(9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights

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action, the district court may conclude that it counts as a “strike.” See id. at n.12. Once it is

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determined that the prisoner plaintiff has three or more actions dismissed as frivolous, malicious,

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or for failure to state a claim, the prisoner is precluded from proceeding in forma pauperis in

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another action unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C.

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§ 1915(g). To satisfy the exception, plaintiff must have alleged facts that demonstrate that he

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was “under imminent danger” at the time of filing the complaint. Andrews v. Cervantes, 493

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F.3d 1047, 1052-53 (9th Cir. 2007). “[T]he exception applies if the complaint makes a plausible

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allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of

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filing.” Id. at 1055.

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The court has previously determined that plaintiff is barred from proceeding in

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forma pauperis pursuant to 28 U.S.C. § 1985(g). See Bontemps v. Sotak, Case No. 2:09-cv-

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2115-MCE-EFB (Docs. 92, 96) (revoking plaintiff’s in forma pauperis status); Bontemps v.

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Jochim, Case No. 2:16-cv-2625-EFB (Doc. 7) (denying plaintiff’s application to proceed in

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forma pauperis).1 In addition, it does not appear that plaintiff was under imminent danger of

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serious physical injury when he filed the instant complaint. In his complaint, Plaintiff claims that

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was subjected to the use of excessive force one time, six months prior to filing the complaint in

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this action. The use of force consisted of placing plaintiff in handcuffs in such a manner that

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caused him pain and marked his skin, then pushing plaintiff in the back. Based on the limited

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Citing the following three cases that were dismissed as frivolous, malicious, or for
failure to state a claim: Langston v. Finn, No. 2:08-cv-2475 EFS (E.D. Cal. May 1, 2013) (Doc.
34) (order of dismissal constitutes a “strike” under 1915(g)); Langston v. CDCR, No.
2:10-cv-3191 KJN (E.D. Cal. May 24, 2013) (“The SAC fails to state a cognizable federal civil
rights claim.”) (Doc. 23); and Langston v. Shiaishi, No. 2:11-cv-1624 DAD (E.D. Cal.May 13,
2013) (failure to state a cognizable claim) (Doc. 17).
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statement of facts in the complaint, it appears this was a one time event. There is nothing in his

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complaint alleging he is or was in any imminent danger of serious physical injury at the time he

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filed his complaint. Having handcuffs placed too tightly causing a mark on the skin is not

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serious physical injury. There is nothing in the complaint which could lead the court to find he

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was plausibly under any danger of serious physical injury. Thus, the imminent danger exception

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does not apply.

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As plaintiff has not paid the filing fee, and is not eligible to proceed in forma

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pauperis, this action shall be dismissed, without prejudice to re-filing upon prepayment of the

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filing fees. See Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998).

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Plaintiff is now required to show cause in writing, within 30 days of the date of

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this order, why this action should not be dismissed. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s application for leave to proceed in forma pauperis (Doc. 4) is

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Plaintiff shall show cause, in writing, within 30 days of the date of this

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denied; and

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order, why this action should not be dismissed without prejudice to re-filing upon pre-payment of

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the filing fees.

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DATED: May 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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