Bontemps v. Arya et al

Filing 7

ORDER signed by Magistrate Judge Deborah Barnes on 7/5/2017 DENYING 6 Motion to Proceed IFP. Plaintiff to pay $400 in fees, within 14 days of the filed date of this order, to proceed with 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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GREGORY C. BONTEMPS,

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No. 2:17-cv-0993 DB P

Plaintiff,
v.

ORDER

ARYA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. In an order filed June 16, 2017, the court held that plaintiff has accrued three strikes under

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28 U.S.C. 1915(g) and may not proceed in forma pauperis unless he is “under imminent danger of

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serious physical injury.” (ECF No. 4.) The court ordered plaintiff to either pay the filing fee or

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file a motion to proceed in forma pauperis along with a statement explaining whether he is in

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imminent danger. On June 28, plaintiff filed a motion to proceed in forma pauperis and a

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statement that he is in “imminent danger of serious physical injury.” (ECF Nos. 5, 6.)

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The availability of the imminent danger exception turns on the conditions a prisoner faced

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at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes,

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493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less obviously

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

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danger of serious physical injury must be a real, present threat, not merely speculative or
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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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Here, plaintiff alleges he has been subjected to excessive force, targeted for physical

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harassment, aggressively searched, groped in a sexual manner, and placed in manacles even

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though his physician ordered that he only be placed in waist chains. (See ECF No. 5.) Plaintiff

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simply lists a number of incidents he alleges have occurred since he was incarcerated at CSP-Sac

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in April 2016. Plaintiff does not allege a specific and ongoing danger of any physical injury. Nor

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does he make any credible and non-speculative allegation that there is a real and proximate threat

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to his physical safety. See Andrews, 493 F.3d at 1053 (citing Lewis v. Sullivan, 279 F.3d 526,

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

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For these reasons, the court finds plaintiff has not demonstrated an imminent danger as

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required by Andrews. Plaintiff therefore does not fall within the imminent danger exception to

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the three strikes rule and may not proceed in forma pauperis in this case. See 28 U.S.C. §

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1915(g). If plaintiff wishes to proceed with this action, he must pay the $350 filing fee and $50

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administrative fee. Failure to pay these fees with result in dismissal of this action.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 6) is denied; and

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2. Within fourteen days of the filed date of this order, plaintiff shall pay $400 in fees to

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proceed with this action. If plaintiff fails to pay these fees, the court will dismiss this

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action without prejudice.

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Dated: July 5, 2017

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DLB:9
DLB1/prisoner-civil rights/bont0993.no ifp

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