(PC) Womack v. Tate ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY JEROME WOMACK, No. 1:19-cv-00614-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 H. TATE, et al., PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 7, 8) 16 17 18 Plaintiff Rodney Jerome Womack is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On May 20, 2019, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s application to proceed in forma pauperis (“IFP”) be denied 23 pursuant to 28 U.S.C. § 1915(g) and that plaintiff be required to pay the $400.00 filing fee in full 24 to proceed with this action. (Doc. No. 8.) Those findings and recommendations were served on 25 plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) 26 days after service. (Id. at 3.) Plaintiff has not filed any objections.1 27 1 On June 13, 2019, plaintiff did file a motion for a preliminary injunction (Doc. No. 9), the 28 merits of which the court does not address in this order. 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 3 and recommendations to be supported by the record and by proper analysis. 4 Under 28 U.S.C. § 1915(g)’s so–called “three strikes” provision, prisoners may be barred 5 from proceeding IFP if they, “on 3 or more prior occasions, while incarcerated or detained in any 6 facility, brought an action or appeal in a court of the United States that was dismissed on the 7 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be 8 granted[.]” Although plaintiff does not contest that he has accumulated enough prior strike 9 dismissals to be barred under the “three strikes” provision, he contends that he qualifies for the 10 exception in that provision applicable to prisoners who face “imminent danger of serious physical 11 injury.” 28 U.S.C. § 1915(g). 12 The assigned magistrate judge rejected that argument in the pending findings and 13 recommendations, concluding that plaintiff’s allegations that the prison’s decision to discontinue 14 treatment of his chronic medical condition caused him “excruciating pain” were belied by his 15 failure to request injunctive relief to remedy his situation.2 (Doc. No. 8.) 16 Under § 1915(g), a plaintiff can proceed IFP if his complaint contains “a plausible 17 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of 18 filing.” Andrews v. Cervantes, 493 F.3d 1047, 1053–55 (9th Cir. 2007) (“[T]he availability of the 19 exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some 20 earlier or later time.”). Moreover, in determining whether the exception applies in a given case, 21 the court “should not make an overly detailed inquiry into whether the allegations qualify for the 22 exception[.]” Id. at 1055. 23 The court acknowledges that plaintiff’s initial failure to seek injunctive relief may raise 24 some doubt as to the legitimacy of his claim, particularly in light of his many prior strike 25 dismissals. But as a pro se litigant, plaintiff is entitled to liberal construal of his allegations. 26 Andrews, 493 F.3d at 1055 (citations omitted). This means the court should be cautious about 27 28 2 In his complaint, plaintiff seeks only money damages—not injunctive relief. (Doc. No. 1 at 8.) 1 | withholding IFP status merely because plaintiff requested the wrong form of relief, an oversight 2 | he now appears to be attempting to correct. (See Doc. No. 9.) 3 However, plaintiff's allegation that “walking on uneven terrain causes [him] excruciating 4 | pain and suffering 24 hours everyday” (Doc. No. | at 6) is insufficient to support an inference of 5 | “imminent danger of serious physical jury.” 28 U.S.C. § 1915(g); see Fields v. Omosaiye, No. 6 | 18-cv-04469-CRB (PR), 2019 WL 1755712, at *2 (N.D. Cal. Apr. 19, 2019) (“[C]hronic pain 7 | generally is not enough to support an inference of imminent danger.”) (citing Fletcher v. 8 | Sherman, No. 1:18-cv-01317-LJO-EPG, 2018 WL 6385538, at *5 (E.D. Cal. Dec. 6, 2018)). 9 | Though plaintiff's allegations of chronic pain, in conjunction with the allegation that his most 10 | recent doctor improperly discontinued his medical treatment, makes this a closer call, □□□□□□□□□□□ 11 || mere “disagree[ment] with prison medical personnel about the course or adequacy of any 12 | treatment he was receiving does not establish imminent danger.” Balzarini v. Lewis, No. 1:13-cv- 13 00820-LJO, 2015 WL 2345464, at *8 (E.D. Cal. May 14, 2015) (collecting cases). 14 Accordingly, 15 1. The findings and recommendations issued on May 20, 2019, (Doc. No. 8), are 16 adopted; 17 2. Plaintiff's application to proceed in forma pauperis, (Doc. No. 7), is denied pursuant 18 to 28 U.S.C. § 1915(g); 19 3. Within twenty-one (21) days from the date of service of this order, plaintiff shall pay 20 the $400.00 filing fee in full to proceed with this action; 21 4. Plaintiff is forewarned that failure to comply with this order will result in the dismissal 22 of this action without prejudice to refiling upon prepayment of the required filing fee; 23 and 24 5. The matter is referred back to the assigned magistrate for further proceedings 25 consistent with this order. 26 | IT IS SO ORDERED. me □ Dated: _ December 18, 2019 Pl A L 28 UNITED STATES DISTRICT JUDGE