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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 13 14 15 16 17 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 18 to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 19 U.S.C. § 636(c) and no other party has been served or appeared in the action. Pending before the 20 court is plaintiff’s motion for leave to proceed in forma pauperis (Doc. 4). 21 The Prison Litigation Reform Act’s (PLRA) “three strikes” provision provides: 22 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. 23 24 25 26 28 U.S.C. § 1915(g). Thus, when a prisoner plaintiff has had three or more prior actions 1 1 dismissed for one of the reasons set forth in the statute, such “strikes” preclude the prisoner from 2 proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas 3 petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 4 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights 5 action, the district court may conclude that it counts as a “strike.” See id. at n.12. Once it is 6 determined that the prisoner plaintiff has three or more actions dismissed as frivolous, malicious, 7 or for failure to state a claim, the prisoner is precluded from proceeding in forma pauperis in 8 another action unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. 9 § 1915(g). To satisfy the exception, plaintiff must have alleged facts that demonstrate that he 10 was “under imminent danger” at the time of filing the complaint. Andrews v. Cervantes, 493 11 F.3d 1047, 1052-53 (9th Cir. 2007). “[T]he exception applies if the complaint makes a plausible 12 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of 13 filing.” Id. at 1055. 14 The court has previously determined that plaintiff is barred from proceeding in 15 forma pauperis pursuant to 28 U.S.C. § 1985(g). See Bontemps v. Sotak, Case No. 2:09-cv- 16 2115-MCE-EFB (Docs. 92, 96) (revoking plaintiff’s in forma pauperis status); Bontemps v. 17 Jochim, Case No. 2:16-cv-2625-EFB (Doc. 7) (denying plaintiff’s application to proceed in 18 forma pauperis).1 In addition, it does not appear that plaintiff was under imminent danger of 19 serious physical injury when he filed the instant complaint. In his complaint, Plaintiff claims that 20 was subjected to the use of excessive force one time, six months prior to filing the complaint in 21 this action. The use of force consisted of placing plaintiff in handcuffs in such a manner that 22 caused him pain and marked his skin, then pushing plaintiff in the back. Based on the limited 23 1 24 25 26 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). 2 1 statement of facts in the complaint, it appears this was a one time event. There is nothing in his 2 complaint alleging he is or was in any imminent danger of serious physical injury at the time he 3 filed his complaint. Having handcuffs placed too tightly causing a mark on the skin is not 4 serious physical injury. There is nothing in the complaint which could lead the court to find he 5 was plausibly under any danger of serious physical injury. Thus, the imminent danger exception 6 does not apply. 7 As plaintiff has not paid the filing fee, and is not eligible to proceed in forma 8 pauperis, this action shall be dismissed, without prejudice to re-filing upon prepayment of the 9 filing fees. See Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998). 10 Plaintiff is now required to show cause in writing, within 30 days of the date of 11 this order, why this action should not be dismissed. Plaintiff is warned that failure to respond to 12 this order may result in dismissal of the action for the reasons outlined above, as well as for 13 failure to prosecute and comply with court rules and orders. See Local Rule 110. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s application for leave to proceed in forma pauperis (Doc. 4) is 2. Plaintiff shall show cause, in writing, within 30 days of the date of this 16 denied; and 17 18 order, why this action should not be dismissed without prejudice to re-filing upon pre-payment of 19 the filing fees. 20 21 22 23 24 DATED: May 12, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 3

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