Bontemps v. Lebeck

Filing 4

ORDER signed by Magistrate Judge Deborah Barnes on 6/15/2017 ORDERING Plaintiff, within 30 days of the date of this order, to pay the $400 filing fee 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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GREGORY C. BONTEMPS,

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No. 2:17-cv-1190 DB P

Plaintiff,
v.

ORDER

J. LEBECK,

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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. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff has neither paid the filing fee nor sought to proceed in forma pauperis. For the

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reasons set forth below, this court finds plaintiff fails to meet the standards to proceed in forma

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pauperis and must pay the filing fee if he wishes to proceed with this action.

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IN FORMA PAUPERIS STATUTE
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
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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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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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Prior to the date plaintiff initiated this action on June 7, 2017, numerous judges in this

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court had found that plaintiff may not proceed with a civil rights action in forma pauperis because

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he has suffered at least three strikes. See, e.g., Bontemps v. Lebeck, No. 2:17-cv-0881 CMK

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(E.D. Cal. June 9, 2017); Bontemps v. Lawaya, No. 2:16-cv-2424 CKD P (E.D. Cal. Apr. 10,

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2017); Bontemps v. Hicks, No. 1:16-cv-1854-EPG (E.D. Cal. Jan. 23, 2017); Bontemps v.

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Harper, No. 2:13-cv-0506-MCE-EFB, 2016 WL 1339577 (E.D. Cal. Apr. 5, 2016), report and

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reco. adopted, 2016 WL 3135840 (E.D. Cal. June 2, 2016); Bontemps v. Sotak, No. 2:09-cv-

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2115-MCE-EFB, 2015 WL 812360 (E.D. Cal. Feb. 25, 2015), report and reco. adopted, 2015 WL

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1469870 (E.D. Cal. Mar. 30, 2015).
In Sotak, the court analyzed plaintiff’s prior dismissed cases. This court has carefully

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reviewed the decision in Sotak and agrees with the analysis set out in that case. For the reasons

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stated in Sotak, the court finds plaintiff has suffered three strikes under § 1915(g).

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IS PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL INJURY?

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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, 157

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

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

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Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
The court has reviewed plaintiff’s complaint filed June 7, 2017. Plaintiff states one claim

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that defendant confiscated plaintiff’s canteen items as a form of retaliation. Plaintiff does not

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allege that he is at risk of any sort of physical injury. Therefore, plaintiff fails to meet the

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imminent danger exception to § 1915(g). Plaintiff may only proceed with this action if he pays

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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.

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2. Plaintiff’s failure to pay the filing fee will result in a recommendation that this action
be dismissed.
Dated: June 15, 2017

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DLB:9
DLB1/prisoner-civil rights/bont1190.3 strikes

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