Braunstein v. Feil et al

Filing 4

ORDER denying 1 Motion/Application for Leave to Proceed in forma pauperis. Payment of filing fees due 30 days of entry of this order. Amended Complaint shall be retained. Signed by Judge Andrew P. Gordon on 6/20/2017. (Copies have been distributed pursuant to the NEF, 2 Copies to P - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

STEVEN BRAUNSTEIN,

5

v.

6

I.

10

12

ORDER

Defendants.

8

11

Plaintiff,

PAMELA FEIL et al.,

7

9

Case No. 2:16-cv-02062-APG-GWF

DISCUSSION
Plaintiff is a prisoner proceeding pro se. Plaintiff has submitted an amended civil

rights complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma
pauperis. (ECF No. 1, 3). However, on at least three (3) occasions, the Court has

13

dismissed civil actions commenced by Plaintiff while in detention as frivolous or for failure

14

to state a claim upon which any relief may be granted. 1

15

Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions,

16

while incarcerated or detained in any facility, brought an action or appeal in a court of the

17

United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

18

state a claim upon which relief may be granted,” he may not proceed in forma pauperis

19

and, instead, must pay the full $400.00 filing fee in advance unless he is “under imminent

20

danger of serious physical injury.” 28 U.S.C. § 1915(g).

21

In the amended complaint, Plaintiff, who is diabetic, alleges that prison officials: (1)

22

deprived him of his legal property in 2013; (2) withheld mail; (3) subjected Plaintiff to

23

multiple harassing urinalysis tests without probable cause; (4) did not inform Plaintiff that

24

the medication he was taking would affect the results of the urinalysis tests; (5) subjected

25
26
27
28

Plaintiff to a disciplinary hearing and disciplinary segregation based on the urinalysis

  See Braunstein v. Sandoval et al., 3:12-cv-00235-LRH-WGC; Braunstein v. Villani et al.,
3:12-cv-00665-MMD-VPC (both appeals dismissed as frivolous); and Braunstein v. Clark
County et al., 3:02-cv-00163-DWH-RAM (dismissed for failure to state a claim). The
Court takes judicial notice of its prior records in the above matters.
1
1

1
2
3

tests; (6) took Plaintiff’s new clothes when he moved to disciplinary segregation; and (7)
denied Plaintiff religious materials while in disciplinary segregation. (ECF No. 3 at 5-6, 8,
10, 12, 14, 17-18). The Court finds that these allegations fail to plausibly allege that

4

Plaintiff is in imminent danger of serious physical injury. See Andrews v. Cervantes, 493

5

F.3d 1047, 1055-56 (9th Cir. 2007) (holding that the exception to § 1915(g) applies if the

6

complaint makes a plausible allegation that the prisoner faced an ongoing danger of

7

serious physical injury at the time of filing).

8

The Court notes that Plaintiff alleges that he had a hypoglycemia event while in

9

disciplinary segregation. Plaintiff alleges the following: On December 15, 2015, a nurse

10

had to order Plaintiff additional food (i.e. a “PM snack”) because Plaintiff had gone into

11

shock while in disciplinary segregation. (ECF No. 3 at 15, 18). This happened to Plaintiff

12

due to the lack of food. (Id. at 18). The Court finds that this one-time event in 2015 does

13

not plausibly allege that Plaintiff faced an ongoing danger of serious physical injury at the

14

time of filing.2 As such, Plaintiff must pre-pay the $400.00 filing fee in full.

15

II.

For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in

16
17

forma pauperis (ECF No. 1) is denied.
It is further ordered that this action will be dismissed without prejudice unless

18
19
20
21
22
23

CONCLUSION

Plaintiff pays the $400.00 filing fee in full within thirty (30) days of entry of this order.
It is further ordered that the Clerk of the Court shall send Plaintiff two copies of this
order. Plaintiff shall make the necessary arrangements to have one copy of this order
attached to the check paying the filing fee.
It is further ordered that the Clerk of the Court shall retain the amended complaint
(ECF No. 3).

24

Dated: June 20, 2017.

25

UNITED STATES DISTRICT JUDGE

26
27
28

    Plaintiff submitted his complaint on August 29, 2016 and his amended complaint on
May 30, 2017. (ECF No. 1-1, 3).
2

2