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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE LeBLANC, 12 13 14 No. 2:17-cv-0180-EFB P Plaintiff, v. ORDER SIGEL, 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 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 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 2 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 3 state a claim upon which relief may be granted. See (1) LeBlanc v. Asuncion, No. 2:16-cv-04280- 4 JLS-AFM (C.D. Cal. June 24, 2016) (dismissing action as frivolous); (2) LeBlanc v. Asuncion, 5 No. 2:16-cv-04725-JLS-AFM (C.D. Cal. July 8, 2016) (dismissing action for failure to state a 6 claim); (3) LeBlanc v. Asuncion, No. 2:16-cv-07434-JLS-AFM (C.D. Cal. Oct. 12, 2016) 7 (dismissing action for failure to state a claim; and (4) LeBlanc v. Asuncion, No. 2:16-cv-7522- 8 JLS-AFM (C.D. Cal. Dec. 12, 2016) (dismissing action for failure to state a claim and designating 9 plaintiff a three-strikes litigant). 10 The section 1915(g) exception applies if the complaint makes a plausible allegation that 11 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 12 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to 13 apply, the court must look to the conditions the “prisoner faced at the time the complaint was 14 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 15 allege “an ongoing danger” to satisfy the imminency requirement). 16 In his January 26, 2017 complaint, plaintiff alleges the following: (1) he was on suicide 17 watch and medicated against his will in August 2016; (2) he was denied adequate mental health 18 treatment in July and August 2016; (3) he was retaliated against in August 2016 for filing inmate 19 grievances; and (4) a policy prevents him from having “writing utensils” in his cell, which limits 20 his ability to file appeals, write letters, and do legal work. ECF No. 1. These allegations fail to 21 demonstrate that plaintiff faced an imminent danger of serious physical injury at the time he filed 22 the complaint. Thus, the imminent danger exception does not apply. Plaintiff’s application for 23 leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must 24 submit the appropriate filing fee in order to proceed with this action. 25 26 Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma pauperis, it is hereby ORDERED that: 27 28 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is denied; and ///// 2 1 2. Plaintiff shall submit, within twenty-one days from the date of this order, the 2 appropriate filing fee. Plaintiff’s failure to comply with this order will result in an order of 3 dismissal. 4 Dated: April 27, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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