Million v. Manuel et al
Filing
12
ORDER DISMISSING CASE. Signed by Magistrate Judge Kandis A. Westmore on 6/27/14. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 6/27/2014)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
9
10
CHARLIE LEE MILLION,
Case No. C 14-0205 KAW (PR)
Plaintiff,
11
ORDER OF DISMISSAL
United States District Court
Northern District of California
v.
12
13
R. MANUEL, Chief of Inmate Appeals, et
al.,
14
Defendants.
15
16
Plaintiff, a state prisoner incarcerated at Salinas Valley State Prison proceeding pro se,
17
filed a civil rights complaint pursuant to 42 U.S.C. § 1983 and moved pursuant to 28 U.S.C.
18
§ 1915(g) for permission to proceed in forma pauperis ("IFP"). On March 17, 2014, the Court
19
issued an Order Denying Plaintiff's Motions and for Plaintiff to Show Imminent Danger Under
20
Section 1915(g). On April 14, April 17 and May 2, 2014, Plaintiff filed responses to the Court's
21
order for him to show imminent danger. For the reasons discussed below, the Court finds that
22
Plaintiff was not in imminent danger at the time he filed this lawsuit and dismisses the complaint
23
under 28 U.S.C. § 1915(g).
24
25
DISCUSSION
The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996, provides
26
that a prisoner may not bring a civil action or appeal a civil judgment IFP under 28 U.S.C. § 1915
27
“if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
28
brought an action or appeal in a court of the United States that was dismissed on the grounds that
1
it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
2
prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The plain
3
language of the imminent danger clause in § 1915(g) indicates that “imminent danger” is to be
4
assessed at the time of filing of the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th
5
Cir. 2007); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v.
6
Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999. The conditions that existed at some earlier or
7
later time are not relevant. Andrews, 493 F.3d at 1053.
8
9
In the Court's March 17, 2014 Order, it found that Plaintiff was a vexatious litigant under
section 1915(g) and that Plaintiff could proceed in this civil rights action only if he met the
"imminent danger of serious physical harm" exception. The Court noted that, from the allegations
11
United States District Court
Northern District of California
10
in Plaintiff's complaint, it appeared that the alleged constitutional violations and any resulting
12
imminent danger occurred in the past, not at the time Plaintiff filed his complaint. However, in an
13
abundance of caution, the Court granted Plaintiff leave to show why he was in imminent danger at
14
the time he filed his complaint.
15
It is apparent from Plaintiff's three responses that the alleged constitutional violations
16
occurred in the past and he was not in imminent danger at the time he filed his complaint. For
17
instance in docket number 9, Plaintiff indicates that he was confined to his cell because of his
18
"Black Hebrew Israelite race" on several occasions between August 12, 2010 and September 12,
19
2013. The last incident occurred on September 12, 2013, when Plaintiff was confined to his cell
20
for thirty days. Plaintiff filed this complaint on January 14, 2014 and his allegations show that he
21
was not in imminent danger on this date. Because Plaintiff was not in imminent danger at the time
22
he filed his complaint, the complaint must be dismissed.
23
Plaintiff argues that he is in imminent danger in the future because Defendants' "race-based
24
lockdown policy" has not changed. However, under Andrews, the danger must exist at the time
25
the complaint is filed, not in the past or the future.
26
CONCLUSION
27
Based on the foregoing, the Court orders as follows:
28
1. Plaintiff's motions to proceed in forma pauperis are DENIED. Doc. nos. 6 and 7. The
2
1
instant action is DISMISSED without prejudice to bringing it in a paid complaint.
2
2. The Clerk of the Court shall enter judgment and close the file.
3
IT IS SO ORDERED.
4
5
6
Dated: 6/27/14
______________________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?