Haney v. Woodruff

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/3/2017 DENYING plaintiff's 2 request to proceed IFP and plaintiff is required to pay the $400.00 fee in full within 21 days. Failure to pay the filing fee as directed will result in the dismissal of this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONTE L. HANEY,

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No. 2:17-cv-0860-EFB P

Plaintiff,

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v.

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M. WOODRUFF,

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ORDER

Defendant.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.
§ 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (ECF No. 2). 1
The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States

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to authorize the commencement and prosecution of any suit without prepayment of fees by a

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person who 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
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). The court takes judicial notice2 of the following lawsuits previously filed

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by plaintiff:

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Haney v. Bondoc, et al., 1:07-cv-01222 GMS (E.D. Cal. Jul. 22,
2007), dismissed for failure to state a claim upon which relief may
be granted. Id., ECF Nos. 16,17.

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Haney v. Hernandez, et al., 1:10-cv-02134 LJO BAM (E.D. Cal.
Nov. 6, 2012), dismissed for failure to state a claim upon which
relief may be granted. Id., ECF No. 47.

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Haney v. Braswell, et al., 1:10-cv-01140 LJO GSA (E.D. Cal. Mar.
25, 2013), dismissed for failure to state a claim upon which relief
may be granted. Id., ECF No. 10.

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Based on the foregoing, this court finds that plaintiff is precluded from proceeding in

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forma pauperis in this action unless plaintiff is “under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g). To meet the exception, plaintiff must allege facts that demonstrate

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that he was “under imminent danger of serious physical injury” at the time of filing the complaint.

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Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (holding that “it is the circumstances

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at the time of the filing of the complaint that matters for purposes of the ‘imminent danger’

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exception under § 1915(g).”).

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Plaintiff alleges that defendant used excessive force against him on April 27, 2016 by

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closing a cell door on his arm. ECF No. 1 at 4-5. This claim does not meet the imminent danger

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exception because it occurred nearly one year before this action was filed. See Lewis v. Sullivan,

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279 F.3d 526, 531 (7th Cir. 2002) (holding that the imminent danger exception applies “[w]hen a

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threat or prison condition is real and proximate . . . .”). And, crucially, plaintiff does not allege

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that defendant has actually used excessive force against him since that date. The only other

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concrete allegation made against defendant in the complaint is that, on November 18, 2016,

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defendant threatened to assault plaintiff with a baton. ECF No. 1 at 6. This alleged threat

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precedes this suit by several months and plaintiff does not allege that defendant ever made good

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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80
F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126
(1981).
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on it. Accordingly, the court finds that plaintiff has not brought allegations which, taken as true,

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demonstrate that he is in imminent danger of serious physical injury.

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Because the court finds that plaintiff has not made the requisite showing of “imminent

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danger” to qualify for an exception to the “three strikes” bar under 1915(g), plaintiff will be

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denied in forma pauperis status and be required to pay the full filing fee in order to proceed with

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this action.

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Accordingly, it is ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is denied;

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2. Plaintiff is required to pay the filing of $400.00 in full within twenty-one (21) days of

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the date of service of this order; and
3. Failure to pay the filing fee as directed will result in the dismissal of this action.
Dated: October 3, 2017.

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