Williams v. Passini et al

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/1/2018 DENYING plaintiff's 2 motion to proceed IFP and GRANTING plaintiff 14 days within which to pay the $400.00 fee for this action. Failure to pay the filing fee within 14 days will result in a recommendation that this action be dismissed. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LANCE WILLIAMS

12

Plaintiff,

13
14

No. 2:17-cv-01362 MCE CKD P

v.

ORDER

MATILDA PASSINI, et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se in this action pursuant to 42 U.S.C. § 1983.

18

This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

19

Along with his complaint, plaintiff filed a motion for leave to proceed in forma pauperis.

20

Title 28 U.S.C. § 1915(g) provides that:

21

In no event shall a prisoner bring a civil action . . . [in forma
pauperis] 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.

22
23
24
25

A review of court records from the United States District Court for the Central District of

26

California reveals that, before this action was filed, plaintiff had at least three lawsuits dismissed

27

////

28

////
1

1

at the screening stage because they were time barred.1 In fact, plaintiff conceded as much in his

2

complaint in this civil action. See ECF No. 1 at 3. Each of these dismissals counts as a strike

3

under 28 U.S.C. § 1915(g) because this court is bound by Belanus v. Clark, 796 F.3d 1021 (9th

4

Cir. 2015). See Williams v. Logan, Case No. 2:15-cv-2084 MCE AC P (E.D. Cal.) (ECF No. 18

5

at 2) (recognizing that the majority in Belanus affirmed the decision that a time-barred action

6

counted as a strike under 1915(g)). Moreover, the Ninth Circuit found that the district court in

7

Williams v. Degeorges, 696 Fed. Appx. 238 (9th Cir. 2017) (unpub.), and Williams v. Just, 696

8

Fed. Appx. 261 (9th Cir. 2017) (unpub.), properly denied plaintiff in forma pauperis status

9

because he had sustained three § 1915(g) strikes.2 See also Coleman v. Tollefson, 135 S. Ct.

10

1759, 1763 (2015) (holding that a “prior dismissal on a statutorily enumerated ground counts as a

11

strike even if the dismissal is the subject of an appeal.”). Therefore, plaintiff is precluded from

12

proceeding in forma pauperis in this action unless he can demonstrate an “imminent danger of

13

serious physical injury.” 28 U.S.C. § 1915(g).

14

In his complaint, plaintiff alleges that he is in imminent danger based on defendant

15

Passini’s failure to provide him with blood pressure and psychiatric medication on several

16

occasions in 2015 and 2016 while an inmate at California Medical Facility in Vacaville (“CMF”).

17

See ECF No. 1 at 5-6. Plaintiff also alleges that he was the target of “racially motivated

18

harassment from January 12, 2016 thru April 28, 2016 in the M-1 Unit of CMF…” that placed

19

him “under constant threat of injury.” ECF No. 1 at 30. However, plaintiff was transferred to the

20

R.J. Donovan Correctional Center in May 2017 and was housed there at the time of filing his

21

complaint. While plaintiff indicates that he has “enemies” at R.J. Donovan, there are no specific

22

allegations of “a practice that has injured him or others similarly situated in the past or that there

23

is a continuing effect resulting from such a practice.” Williams v. Paramo, 775 F.3d 1182 (9th

24
1

25
26
27
28

These include: Williams v. Aparicio, No. 2:14-cv-08640 (C.D. Cal. Feb. 5, 2015); aff’d by 669
Fed. Appx. 385 (9th Cir. 2016); Williams v. Kerkfoot, No. 2:14-cv-07583 (C.D. Cal. May 15,
2015); ECF No. 15-3 at 35-36; aff’d by 669 Fed. Appx. 380 (9th Cir. 2016); Williams v. Young,
No. 2:14-cv-8037 (C.D. Cal. May 19, 2015); ECF No. 15-3 at 46-52 (Memorandum and Order).
2
In addition to the three “strikes” identified above, plaintiff has a fourth “strike” arising out of a
Ninth Circuit appeal which was dismissed as frivolous before this action was filed. See Williams
v. Young, No. 15-55967.
2

1

Cir. 2015) (internal quotations and citation omitted). See ECF No. 1 at 114. Plaintiff does not

2

request any form of injunctive relief in his complaint.
In order to meet the imminent danger exception, the court reviews “the conditions a

3
4

prisoner faced at the time the complaint was filed, not at some earlier or later time.” Andrews v.

5

Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). A pro se complaint is also construed liberally to

6

determine whether the § 1915(g) exception applies. See Wolfe v. Strankman, 392 F.3d 358, 362

7

(9th Cir. 2004); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). As the Ninth Circuit

8

Court of Appeals has explained, this requires “a plausible allegation that the prisoner faced

9

‘imminent danger of serious physical injury’ at the time of filing” the complaint. Andrews, 493

10

F.3d at 1055.

11

Here, plaintiff has failed to demonstrate an imminent danger at R.J. Donovan Correctional

12

Center. By way of contrast, the Ninth Circuit found an ongoing imminent danger following an

13

inmate’s transfer to a different prison when the complaint was based on allegations that the

14

defendant prison guards spread rumors that plaintiff was a convicted sex offender and child

15

molester and improperly assigned an “R” suffix to her prison file which followed her to

16

subsequent prisons. Williams v. Paramo, 775 F.3d at 1190. In Ashley v. Dilworth, 147 F.3d 715

17

(8th Cir. 1998), the Eighth Circuit concluded that a plaintiff had sufficiently alleged an imminent

18

danger of serious physical injury where he had repeatedly been placed near listed enemies and

19

had been attacked on two separate occasions: first with a nine inch screwdriver and then a year

20

later with a butcher knife. Unlike Williams and Ashley, there is no allegation of conduct by

21

defendants in this action that spread to a different prison or a past harm from prison enemies that

22

has an ongoing effect. Thus, at the time of filing the instant complaint, plaintiff was not under

23

“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
In light of the foregoing, plaintiff’s motion for leave to proceed in forma pauperis will be

24
25

denied. Plaintiff will be granted fourteen days within which to pay the filing fee for this action.

26

Failure to pay the filing fee in such time period will result in a recommendation that this action be

27

dismissed.

28

/////
3

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is denied.

3

2. Plaintiff is granted fourteen days within which to pay the $400 filing fee for this action.

4

Failure to pay the filing fee within fourteen days will result in a recommendation that this action

5

be dismissed.

6

Dated: February 1, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14

12/will1362.denyifp.docx

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4