Brown v. United States et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/27/2018 DENYING plaintiff's 7 request for leave to file an amended complaint; and plaintiff is GRANTED 14 days to submit the $400.00 filing fee for this action. Failure to do so will result in a recommendation that this action be dismissed. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEXTER BROWN,

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No. 2:18-cv-1719 CKD P

Plaintiff,

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v.

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ORDER

UNITED STATES, et al.,

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Defendants.

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

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

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pursuant to 28 U.S.C. § 1915(g)1 and plaintiff failed to point to facts in his complaint which

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

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

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

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

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complaint).

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Plaintiff has filed a document titled “motion for reconsideration.” However, in the

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document he agrees that he did not adequately allege imminent danger of serious physical injury

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See 2:17-cv-2041 KJM AC, ECF No. 14.

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in his original complaint. Rather, he seeks leave to amend and has submitted a proposed

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amended complaint.

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The court has reviewed the amended complaint and finds that it still does not adequately

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demonstrate plaintiff was under imminent danger of serious physical injury at the time he filed his

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complaint. As the court has previously explained, to meet his burden under § 1915(g) to

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adequately allege “imminent danger of serious physical injury,” plaintiff must provide “specific

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fact 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).
The only place in plaintiff’s amended complaint where he comes close to providing the

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requisite level of specificity and plausibility for establishing “imminent danger of serious physical

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injury” is in paragraph 6 on page 5. However, the allegations therein concern matters occurring

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after plaintiff filed his complaint.

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Also, while not entirely clear, it appears plaintiff seeks an order directing the F.B.I. to

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investigate certain conditions of confinement pertaining to plaintiff (without providing any

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adequate basis for issuance of such an order). Plaintiff does not seek an order which directly

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addresses conditions of confinement themselves which goes against the spirit of permitting

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“struck out” inmates to proceed if a state of emergency or near emergency exists.

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While Rule 15(a)(2) of the Federal Rules of Civil Procedure permits the court to grant

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leave to amend as “justice so requires,” granting leave to amend here would be futile.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to file an amended complaint is denied (ECF No. 7); and

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2. Plaintiff is granted 14 days within which to submit the $400 filing fee for this action.

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Failure to do so will result in a recommendation that this action be dismissed.

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Dated: August 27, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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brow1719.so(2)

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