(PC) Arendas v. Owens ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER JOHN ARENDAS, No. 2:19-cv-1779 JAM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 OWENS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. He filed this action on September 9, 2019, 18 seeking relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Before the court is plaintiff’s complaint for 20 screening and plaintiff’s motion to proceed in forma pauperis.1 For the reasons set forth below, 21 this court finds plaintiff fails to meet the standards to proceed in forma pauperis and recommends 22 this action be dismissed if plaintiff fails to pay the filing fee. 23 //// 24 //// 25 //// 26 27 1 While plaintiff did not file a formal motion to proceed in forma pauperis, it is clear from both his complaint and his filings with this court that he seeks to proceed without payment of the filing 28 fee. 1 IN FORMA PAUPERIS STATUTE 2 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 3 the commencement and prosecution of any suit without prepayment of fees by a person who 4 submits an affidavit indicating that the person is unable to pay such fees. However, 5 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 6 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 7 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 8 prisoner is under imminent danger of serious physical injury. 9 28 U.S.C. § 1915(g). 10 This “three strikes rule” was part of “a variety of reforms designed to filter out the bad 11 claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 12 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has 13 “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless 14 he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 15 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 16 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 17 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 18 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 19 HAS PLAINTIFF ACCRUED THREE STRIKES? 20 Plaintiff has several other pending actions in this court. In one, Judge Nunley recently 21 held that plaintiff accrued three strikes prior to filing the complaint in that case. Arendas v. Vega, 22 No. 2:19-cv-1332 TLN EFB P, 2019 WL 6975558 (E.D. Cal. Dec. 20, 2019). The cases which 23 Judge Nunley found to be strikes under 28 U.S.C. § 1915(g) are: (1) Arendas v. Somerset County 24 Sheriff’s Dep’t, No. 3:09-cv-5782-FLW-TJB, 2010 WL 2539425 (D. N.J. June 16, 2010); (2) 25 Arendas v. Hillsborough Police Dep’t., No. 3:09-cv-5965, 2010 WL 2682163 (D. N.J. July 2, 26 2010); and (3) Arendas v. Somerset County Sheriff’s Dep’t, No. 3:09-cv-6061-JAP-TJB, 2010 27 WL 2696323 (D. N.J. July 6, 2010). Id. at *1. Each of these cases was dismissed prior to the 28 1 filing of the complaint in the present case as well. Accordingly, plaintiff accrued three strikes 2 prior to filing this case and may not proceed unless he can show he “is under imminent danger of 3 serious physical injury.” 28 U.S.C. § 1915(g). 4 IS PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL INJURY? 5 The availability of the imminent danger exception turns on the conditions a prisoner faced 6 at the time the complaint was filed, not at some earlier or later time. See Andrews, 493 F.3d at 7 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as 8 overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury 9 must be a real, present threat, not merely speculative or hypothetical. To meet his burden under § 10 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a 11 pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 12 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 13 are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the 14 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 15 and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 16 The court has reviewed plaintiff’s complaint filed September 9, 2019. (ECF No. 1.) 17 Plaintiff makes three claims: (1) defendants are violating his due process right of access to the 18 courts by refusing to provide him with signed forms to support his requests to proceed in forma 19 pauperis; (2) defendants’ actions amount to retaliation against plaintiff for filing lawsuits; and (3) 20 defendants have refused to provide plaintiff with legal materials. 21 Plaintiff does not allege that he is at risk of any sort of physical injury. Therefore, 22 plaintiff fails to meet the imminent danger exception to § 1915(g). Plaintiff should only be 23 permitted to proceed with this action if he pays the filing fee. 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) be denied; and 26 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 27 order adopting these findings and recommendations and be warned that failure to do so will result 28 in the dismissal of this action. 1 These findings and recommendations are submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 | after being served with these findings and recommendations, plaintiff may file written objections 4 | with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 5 | and Recommendations.” Failure to file objections within the specified time may waive the right 6 | to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 7 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: December 27, 2019 9 10 ll ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 | DLB:9 ig DLB1/prisoner-civil rights/aren1779.3 strikes fr 19 20 21 22 23 24 25 26 27 28