Coleman v. San Mateo County et al

Filing 6

ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER DISMISSING CASE. Signed by Judge Hon. Lucy H. Koh on 2/24/2016. (sms, COURT STAFF) (Filed on 2/25/2016)

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1· 2 FILED 3 FEB '5 2016 4 SUSAN Y. SOONG CLEAK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 TERRY RAY COLEMAN, Plaintiff, 12 13 14 15 v. SAN MATEO COUNTY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. C 15-4758 LHK (PR) ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER OF DISMISSAL 16 Plaintiff, a state prisoner proceeding prose, filed a civil rights complaint pursuant to 42 17 U.S.C. § 1983 seeking damages for alleged civil rights violations. Plaintiff also filed a motion 18 for leave to proceed in forma pauperis ("IFP"). On January 7, 2016, the court issued an order to 19 plaintiffto show cause why plaintiffs motion to proceed IFP should not be denied, and the case 20 dismissed, pursuant to 28 U.S.C. § 1915(g). The court also notified plaintiff that, alternatively, 21 he could pay the $400.00 to avoid dismissal. Plaintiff has not filed a response. For the reasons 22 stated below, the court DENIES plaintiffs motion for leave to proceed IFP, and DISMISSES 23 this case without prejudice. 24 DISCUSSION 25 The Prison Litigation Reform Act of 1995 was enacted, and became effective, on April 26 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. § 1915 "if 27 the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 28 Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal P:\PRO-SE\LHK\CR.15\Coleman758disl915.wpd 1 brought an action or appeal in a court of the United States that was dismissed on the grounds that 2 it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 3 prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). 4 For purposes of a dismissal that may be counted under section 1915(g), the phrase "fails 5 to state a claim on which relief may be granted" parallels the language ofFederal Rule of Civil 6 Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that 7 is "of little weight or importance: having no basis in law or fact," and the word "malicious" 8 refers to a case "filed with the 'intention or desire to harm another."' Andrews v. King, 398 F.3d 9 1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories 10 can be counted as strikes for section 1915(g) purposes. See id Dismissal of an action under 11 section 1915(g) should only occur when, "after careful evaluation of the order dismissing an 12 [earlier] action, and other relevant information, the district court determines that the action was 13 dismissed because it was frivolous, malicious or failed to state a claim." Id 14 The court previously notified plaintiff that plaintiff has had at least three prior prisoner 15 actions that were dismissed on the ground that they were frivolous, malicious, or failed to state a 16 claim upon which relief may be granted. The following federal district court dismissals may be 17 counted as dismissals for purposes of section 1915(g): (1) Coleman v. County ofSan Mateo, No. 18 13-0474 LHK (pr) (N.D. Cal. dismissed April11, 2013) (dismissed for failure to state a claim); 19 (2) Coleman v. Ulshoeffer, No. 11-6290 LHK (pr) (N.D. Cal. dismissed May 23, 2012) 20 (dismissed with leave to amend for failure to state a claim, and ultimately dismissed without 21 filing an amended complaint); and (3) Coleman v. County of San Mateo, No. 11-5728 LHK (pr) 22 (N.D. Cal. dismissed May 23, 2012) (same). Plaintiff has not objected to, or otherwise refuted, 23 that the above-referenced dismissals are "strikes" for purposes of section 1915(g). 24 Despite having had three strikes pursuant to section 1915(g), plaintiff may still be able to 25 proceed IFP if he can show that he is in imminent danger of serious physical injury. Plaintiff has 26 the burden of proving that he satisfies this exception to section 1915(g) by demonstrating that he 27 is in imminent danger of serious physical injury. The plain language of the imminent danger 28 clause in section 1915(g) indicates that "imminent danger" is to be assessed at the time ofthe Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal 2 P:\PRO-SE\LHK\CR.l5\Coleman758disl915.wpd 1 filing ofthe complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 2 ("Andrews IF'). The conditions that existed at some earlier or later time are not relevant. See id. 3 and n.5. The court "should not make an overly detailed inquiry into whether the allegations 4 qualifY for the exception." !d. at 1055. It is sufficient if the complaint "makes a plausible 5 allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of 6 filing." !d.; see, e.g., id. at 1055 (allegation that plaintiffwas at risk of contracting HIV or 7 hepatitis C was sufficient to bring his complaint within the imminent danger exception); cf 8 Medberry v. Butler, 185 F.3d 1189, 1193 (lith Cir. 1999) (no ongoing danger where plaintiff 9 had been placed in administrative segregation following physical assaults by fellow inmates and 10 before he filed his complaint). In this circuit, "requiring a prisoner to allege[] an ongoing danger 11 -the standard adopted by the Eighth Circuit- is the most sensible way to interpret the 12 imminency requirement." Andrews II, 493 F.3d at 1056 (internal quotation marks omitted). 13 Here, plaintiff has not suggested that he was under imminent danger of serious physical 14 injury. Thus, he has not satisfied his burden to show that he is entitled to the exception to 15 section 1915(g). In addition, the court has reviewed plaintiffs complaint, and nothing in the 16 complaint suggests that plaintiff faced any "ongoing danger" of serious physical injury sufficient 17 to "meet the imminence prong of the three-strikes exception" at the time plaintiff filed his 18 complaint. !d. at 1057. Accordingly, plaintiffhas not shown that he is entitled to the imminent 19 danger exception under section 1915(g) to avoid dismissal without prejudice. 20 21 22 CONCLUSION Plaintiffs motion to proceed IFP is DENIED. Because plaintiff has not paid the $400.00 filing fee, this action is DISMISSED without prejudice. 23 The Clerk shall terminate all pending motions and close the file. 24 IT IS SO ORDERED. 25 26 DATED: ~~2.f/WIIo I I United States District Judge 27 28 Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal 3 P:\PRO-SE\LHK\CR.I5\Coleman758disl915.wpd

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