Brown v. United States et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/14/2018 DENYING 10 Motion for Leave to File a Second Amended Complaint. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DEXTER BROWN,

12
13
14

No. 2:18-cv-1719 CKD P

Plaintiff,
v.

ORDER

UNITED STATES, et al.,

15

Defendants.

16
17

Plaintiff is a California prisoner proceeding pro se with a civil action. On July 31, 2018,

18

the court denied plaintiff’s request to proceed in forma pauperis because plaintiff has “struck out”

19

pursuant to 28 U.S.C. § 1915(g) and plaintiff failed to point to facts in his complaint which

20

adequately demonstrate he was under imminent danger of serious physical injury at the time he

21

filed his complaint. See id; Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (court

22

may permit plaintiff to proceed in forma pauperis in spite of a finding that he has “struck out” if

23

he alleges he is in imminent danger of serious physical injury at the time of the filing of the

24

complaint).

25
26
27
28

On August 27, 2018, the court denied plaintiff’s request for leave to file an amended
complaint. Specifically, the court held as follows:
The court has reviewed the amended complaint and finds that it still
does not adequately demonstrate plaintiff was under imminent
danger of serious physical injury at the time he filed his complaint.
1

1

As the court has previously explained, to meet his burden under §
1915(g) to adequately allege “imminent danger of serious physical
injury,” plaintiff must provide “specific fact allegations of ongoing
serious physical injury, or a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.” Martin v. Shelton,
319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory
assertions” of harm are insufficient. White v. Colorado, 157 F.3d
1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger”
exception is available “for genuine emergencies,” where “time is
pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan,
279 F.3d 526, 531 (7th Cir. 2002).

2
3
4
5
6

The only place in plaintiff’s amended complaint where he comes
close to providing the requisite level of specificity and plausibility
for establishing “imminent danger of serious physical injury” is in
paragraph 6 on page 5. However, the allegations therein concern
matters occurring after plaintiff filed his complaint.

7
8
9
10

Also, while not entirely clear, it appears plaintiff seeks an order
directing the F.B.I. to investigate certain conditions of confinement
pertaining to plaintiff (without providing any adequate basis for
issuance of such an order). Plaintiff does not seek an order which
directly addresses conditions of confinement themselves which goes
against the spirit of permitting “struck out” inmates to proceed if a
state of emergency or near emergency exists.

11
12
13
14

While Rule 15(a)(2) of the Federal Rules of Civil Procedure permits
the court to grant leave to amend as “justice so requires,” granting
leave to amend here would be futile.

15
16

On September 6, 2018, plaintiff filed a motion seeking leave to file a second amended

17

complaint in order to attempt to plead “imminent danger of serious physical injury.” However,

18

plaintiff still fails to point to anything suggesting this would not be an “exercise in futility.”

19

Accordingly, plaintiff’s request will be denied. Plaintiff is informed that to the extent he has a

20

good faith belief that he is currently under “imminent danger of serious physical injury” and

21

wishes to assert a claim which directly concerns that danger, nothing in this action precludes

22

plaintiff from bringing another.

23

In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s motion for

24

leave to file a second amended complaint (ECF No. 10) is denied.

25

Dated: September 14, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

26
27
28

1/brow1719.so(2)

2