Hendon v. California Medical Facility et al

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 7/22/2017 ORDERING Plaintiff to pay the $400 filing fee within 30 days of the date of this order to proceed in this action. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS HENDON,

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No. 2:17-cv-0171 DB P

Plaintiff,
v.

ORDER

CALIFORNIA MEDICAL FACILITY, et
al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983 and has moved to proceed in forma pauperis. Plaintiff consented to the jurisdiction of a
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magistrate judge. (ECF No. 4.)
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For the reasons set forth below, this court finds plaintiff fails to meet the standards to
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proceed in forma pauperis and must pay the filing fee if he wishes to proceed with this action.
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IN FORMA PAUPERIS STATUTE
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The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize
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the commencement and prosecution of any suit without prepayment of fees by a person who
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submits an affidavit indicating that the person is unable to pay such fees. However,
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[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section 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
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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).
This “three strikes rule” was part of “a variety of reforms designed to filter out the bad

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claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135

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S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has

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“three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless

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he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes,

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493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes”

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prisoner must plausibly allege that the prisoner was faced with imminent danger of serious

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physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189

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(9th Cir. 2015); Andrews, 493 F.3d at 1055.
HAS PLAINTIFF ACCRUED THREE STRIKES?

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Numerous judges in this court have found that plaintiff may not proceed with a civil rights

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action in forma pauperis because he has suffered at least three strikes. See, e.g., Hendon v.

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Davey, No. 2:17-cv-0169 KJN P (E.D. Cal.) (Order filed Mar. 23, 2017); Hendon v. Carillo, No.

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2:17-cv-0170 CKD P (E.D. Cal.) (Order filed Feb. 28, 2017); Hendon v. Kulka, No. 2:14-cv-2581

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AC P (E.D. Cal.) (Order filed Aug. 3, 2015); Hendon v. Baroya, No. 1:09-cv-911 MJS (PC) (E.D.

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Cal.) (Order filed July 29, 2010).
This court also finds plaintiff has suffered three strikes under § 1915(g). Each of the

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following cases1 was dismissed for failure to state a claim prior to plaintiff’s filing of this action:

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(1) Hendon v. Rogel, 2:05-cv-1063 DFL PAN (E.D. Cal.) (Order filed Aug. 28, 2006);

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(2) Hendon v. Witcher, 1:05-cv-1246 AWI DLB (E.D. Cal.) (Order filed Aug. 6, 2007);
and

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(3) Hendon v. White, 2:07-cv-1825 GEB CMK (E.D. Cal.) (Order filed Feb. 5, 2008).

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A court may take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370, 1377 (9th
Cir. 1994).
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IS PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL INJURY?
Because plaintiff has accrued three strikes, this court finds that plaintiff is precluded from

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proceeding in forma pauperis in this action unless he is “under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g). The availability of the imminent danger exception turns

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on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later

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time. See Andrews v. Cervantes, 493 F.3d at 1053. “[A]ssertions of imminent danger of less

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obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11.

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Imminent danger of serious physical injury must be a real, present threat, not merely speculative

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or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact

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allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the

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likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.

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2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado,

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157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger” exception is available

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“for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.”

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Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

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The court has reviewed plaintiff’s first amended complaint filed February 21, 2017.

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(ECF No. 5.) Plaintiff alleges defendants have denied plaintiff access to the library at the

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California Medical Facility based on his disability. As relief, plaintiff seeks compensatory

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damages. Plaintiff’s first amended complaint also includes a section entitled “Imminent Danger.”

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(Id. at 5-6.) Therein, plaintiff alleges that he is at risk of being forcibly medicated and being

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strapped to a bed to restrain him because he has been subjected to recurring transfers between

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institutions.

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Plaintiff does not make any credible and non-speculative allegation that there is a real and

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proximate threat to his physical safety. See Andrews, 493 F.3d at 1053 (citing Lewis v. Sullivan,

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279 F.3d 526, 531 (7th Cir. 2002); Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001)).

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Moreover, the purpose of the imminent danger exception is to allow prisoners to proceed with

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cases in order to resolve the issues creating the imminent danger. See Young v. Curliss, No.

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1:12-cv-1871 JLT (PC), 2013 WL 56987, at *2 (E.D. Cal. Jan. 3, 2013). Here, plaintiff’s
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assertions of imminent danger are not tied to the allegations of his complaint. Therefore, plaintiff

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fails to meet the imminent danger exception to § 1915(g). Plaintiff may only proceed with this

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action if he pays the filing fee.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Within thirty days of the date of this order, plaintiff shall pay the $400 filing fee to

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proceed in this action.
2. Plaintiff’s failure to pay the filing fee will result in dismissal of this action.
Dated: July 22, 2017

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DLB:9
DLB1/prisoner-civil rights/hend0171.3 strikes

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