Alonzo Joseph v. Noguchi

Filing 11

ORDER denying 10 Motion for Reconsideration signed by Magistrate Judge Allison Claire on 07/11/17. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JAMES JOSEPH,

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No. 2:17-cv-01193 MCE AC P

Plaintiff,
v.

ORDER

V. NOGUCHI,
Defendant.

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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. On June 12, 2017, the court denied plaintiff’s application to proceed in forma

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pauperis after determining that he was a “three-striker” within the meaning of 28 U.S.C. §

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1915(g). ECF No. 6. It ordered plaintiff to pay the filing fee within thirty days – a deadline that

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has not yet run. Id. Now, plaintiff has filed a motion for reconsideration of the denial of his

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application to proceed in forma pauperis. ECF No. 10. This motion will be denied.

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In his motion, plaintiff argues that he falls into the “imminent danger” exception to the

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three strikes provision in 28 U.S.C. § 1915(g). ECF No. 10 at 2. He argues that Mule Creek

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State Prison is the leading prison for attacks on inmates convicted of “sex related crimes.” Id. at

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1. He offers no allegation of any specific threat, but claims that he will be able to make a more

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specific showing of imminent danger if he is permitted to engage in discovery. Id. at 2. These

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arguments are not persuasive. First, plaintiff’s motion for in forma pauperis (filed simultaneously
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with his complaint) indicates that he was housed at the California Substance Abuse Treatment

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Facility and State Prison, and not Mule Creek, at the time he filed this suit. See ECF No. 2. It is

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true that the events giving rise to this suit allegedly occurred at Mule Creek, but this has no

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applicability to the question of whether plaintiff was in imminent danger at the time this suit was

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filed. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (holding that availability

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of imminent danger exception “turns on the conditions a prisoner faced at the time the complaint

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was filed, not at some earlier or later time.”). Second, it is unclear why proceeding to discovery

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would be necessary to make a showing of imminent danger. Plaintiff is not required to prove his

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allegations of imminent danger or support them with concrete evidence at the time he seeks leave

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to proceed in forma pauperis. Id. (“[T]he issue [under § 1915(g)] is whether his complaint, as a

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whole, alleges imminent danger of serious physical injury.”) (quoting Brown v. Johnson, 387

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F.3d 1344, 1350 (11th Cir. 2004)) (emphasis added). It is enough to state his allegations of

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imminent danger specifically and unambiguously – something plaintiff has not done in either his

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motion for reconsideration or his complaint.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration (ECF

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No. 10) is DENIED.

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DATED: July 11, 2017

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