LeBlanc v. Sigel et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2017 DENYING 2 Motion to Proceed IFP. 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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ANTOINE LeBLANC,

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No. 2:17-cv-0180-EFB P

Plaintiff,
v.

ORDER

SIGEL, 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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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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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has

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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to

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state a claim upon which relief may be granted. See (1) LeBlanc v. Asuncion, No. 2:16-cv-04280-

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JLS-AFM (C.D. Cal. June 24, 2016) (dismissing action as frivolous); (2) LeBlanc v. Asuncion,

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No. 2:16-cv-04725-JLS-AFM (C.D. Cal. July 8, 2016) (dismissing action for failure to state a

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claim); (3) LeBlanc v. Asuncion, No. 2:16-cv-07434-JLS-AFM (C.D. Cal. Oct. 12, 2016)

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(dismissing action for failure to state a claim; and (4) LeBlanc v. Asuncion, No. 2:16-cv-7522-

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JLS-AFM (C.D. Cal. Dec. 12, 2016) (dismissing action for failure to state a claim and designating

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plaintiff a three-strikes litigant).

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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).

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In his January 26, 2017 complaint, plaintiff alleges the following: (1) he was on suicide

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watch and medicated against his will in August 2016; (2) he was denied adequate mental health

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treatment in July and August 2016; (3) he was retaliated against in August 2016 for filing inmate

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grievances; and (4) a policy prevents him from having “writing utensils” in his cell, which limits

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his ability to file appeals, write letters, and do legal work. ECF No. 1. These allegations fail to

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demonstrate that plaintiff faced an imminent danger of serious physical injury at the time he filed

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the complaint. Thus, the imminent danger exception does not apply. Plaintiff’s application for

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leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must

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submit the appropriate filing fee in order to proceed with 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 No. 2) 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 an order of

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dismissal.

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Dated: April 27, 2017.

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