Walker v. Hubert et al

Filing 10

ORDER denying 6 Motion for Leave to Proceed in forma pauperis. Motion is Denied pursuant to 28 USC 1915(g). Signed by Judge Barry Ted Moskowitz on 11/18/2014. (All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

JEFF E. WALKER,
CDCR No. F-11343,

Civil
No.
Plaintiff,

13
14

vs.

15
16
17
18

14cv0788 BTM (KSC)

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY
28 U.S.C. § 1915(g)

C/O D. HUBERT; C/O C. MOORE;
SGT. LUNA; LT. ACUNA; C/O
LABACO; C/O MURPHY; NURSE
DONOHUE; JOHN/JANE DOES,
Defendants.

19
20
21 I.
22

Procedural History
Plaintiff, a state inmate currently incarcerated at the California Health Care

23 Facility located in Stockton, California, has filed an action pursuant to 42 U.S.C. § 1983.
24 (ECF Doc. No. 1.) In addition, Plaintiff has filed a Motion to Proceed In Forma
25 Pauperis (“IFP”). (ECF Doc. No. 6.) The Court found that Plaintiff was not entitled to
26 proceed IFP due to three previous “strikes” as defined by 28 U.S.C. § 1915(g).
27 However, the Court issued an Order to Show Cause (“OSC”) on July 8, 2014 requiring
28
-1-

14cv0778 BTM (KSC)

1 Plaintiff to show why he would be entitled to the “imminent danger” exception of
2 § 1915(g).
3

On August 20, 2014, Plaintiff filed his response to the Court’s July 8, 2014 OSC.

4 (ECF Doc. No. 9.)
5 II.

PLAINTIFF’S MOTION TO PROCEED IFP

6

The Court has already determined that the following three cases constitute

7 “strikes” for purposes of § 1915(g). See July 8, 2014 Order at 3.
8

They are:

9

1)

Walker v. San Francisco County Jail, Civil Case No. 3:08-cv-1264-CRB

10

(N.D. Cal. Mar. 14, 2008) (Order of Dismissal for failing to state a claim)

11

(strike one);

12

2)

Walker v. Jane Doe, et al., Civil Case No. 3:08-cv-01265-CRB (N.D. Cal.

13

Mar 14, 2008) (Order of Dismissal for failing to state a claim (strike two);

14

and

15

3)

Walker v. Gradillas, et al., Civil Case No. 3:09-cv-02845-CRB (N.D. Cal.

16

Aug. 6, 2009) (Order of Dismissal for failing to state a claim) (strike three).

17

Plaintiff has filed a one (1) page response to the Court’s OSC. In this response,

18 which is not entirely coherent, Plaintiff claims that he was “under ‘imminent danger’ at
19 the time the events in his Complaint took place. (See Pl.’s Decl. at 1.) However, as the
20 Court noted in its previous Order, Plaintiff’s allegations refer to incidents that were
21 alleged to occur several months prior to the date that Plaintiff submitted his Complaint
22 to this Court. In his Declaration, Plaintiff contends that Defendant Hubert “not only
23 assaulted Plaintiff but threatened his life and retaliation as noted.” (Id.) These are the
24 same allegations set forth in Plaintiff’s Complaint that pertain to the incidents that
25 occurred in January of 2014. As the Court stated in the previous Order, there are no
26 allegations that Plaintiff was in imminent danger at the time he filed his Complaint
27 several months later.
28
-2-

14cv0778 BTM (KSC)

1

Plaintiff also states that there is proof of imminent danger because he was

2 “assaulted” by “C/O/ Heddy” in May of 2014. There is no such person identified in
3 Plaintiff’s Complaint, there is no Defendant named “Heddy” and it is unclear if this
4 person is employed at the Richard J. Donovan Correctional Facility (“RJD”) where the
5 allegations took place or Plaintiff’s current place of incarceration.
6

The imminent danger exception “applies if the complaint makes a plausible

7 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time
8 of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). While Plaintiff
9 makes serious allegations in his Complaint that Defendant Hubert allegedly raped
10 Plaintiff, he then states that he “wasn’t sure if [Hubert] was involved or not” with the
11 alleged rape. (See Compl. at 4-5.) Plaintiff also alleges that it was the person who was
12 tasked with overseeing Plaintiff’s suicide watch who allegedly raped him in his cell.
13 (Id.) A number of Plaintiff’s claims appear to be borderline delusional and the Court
14 finds there are no plausible allegations that Plaintiff was in imminent danger of serious
15 physical injury at the time his filed this action on April 3, 2014.
16 III.

CONCLUSION AND ORDER

17

For the reasons set forth above, the Court hereby:

18

(1)

DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 6) as barred by

19 28 U.S.C. § 1915(g);
20

(2)

DISMISSES this civil action sua sponte without prejudice for failing to

21 prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); and
22

(3)

CERTIFIES that an IFP appeal from this Order would also be frivolous and

23 therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v.
24 United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.
25 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not
26 be frivolous).
27 / / /
28 / / /
-3-

14cv0778 BTM (KSC)

1 ///
2 The Clerk shall close the file.
3
4 IT IS SO ORDERED.
5 DATED: November 18, 2014
6
7

BARRY TED MOSKOWITZ, Chief Judge
United States District Court

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

14cv0778 BTM (KSC)