(PC)Thomas v. Pfeiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD THOMAS, No.: 1:19-cv-01489-NONE-EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 ORDER REQUIRING PLAINTIFF TO PAY 14 v. $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS 15 (Doc. No. 6) 16 C. PFEIFFER, et al., 17 Defendants. 18 19 Plaintiff Edward Thomas, a state prison inmate, brought this civil rights action pro se 20 under 42 U.S.C. § 1983, claiming that the prison officials are putting him in imminent danger. 21 (Doc. No. 1 at ¶¶ 1, 5, 10, 12.) At issue before the court is whether the exception to the three- 22 strikes rule under 28 U.S.C. § 1915(g) applies: that is, whether plaintiff must pay the required 23 filing fee now to proceed with this action or is entitled to be granted in forma pauperis (“IFP”) 24 status and pay the filing fee later. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 25 2007). 26 In a previous case almost two years ago, then Chief District Judge Lawrence J. O’Neill 27 found that plaintiff had suffered three prior strike dismissals under § 1915(g), thereby precluding 28 him from be granted IFP status unless he was “under imminent danger of serious physical injury” 1 as required by that statute. Thomas v. Parks, No. 116-CV-01393-LJO-JLT (PC), 2018 WL 2 4373021, at *1 (E.D. Cal. Sept. 13, 2018); (see also Doc. No. 6 at 2.) When the issue of 3 plaintiff’s IFP status arose again in this case, the assigned magistrate judge found that plaintiff 4 had well passed the three strikes afforded to him by § 1915, and turned to considering whether 5 plaintiff’s complaint had plausibly pled that he was in “imminent danger of serious physical 6 injury.” (Doc. No. 6 at 3-5.) Finding that plaintiff had failed to sufficiently plead imminent 7 danger even when the complaint was liberally construed, the magistrate judge, on November 19, 8 2019, recommended that plaintiff should be required to pay $400 in filing fee if he wanted to 9 further proceed with this action. (Id.) In response, plaintiff filed his objections (including various 10 exhibits) on April 14, 2020. (Doc. No. 14.) 11 In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this court has conducted 12 a de novo review of this case. Having carefully reviewed the entire file, the court finds the 13 pending findings and recommendations to be supported by the record and proper analysis. The 14 court further finds that plaintiff’s objections raise various irrelevant and unavailing arguments 15 that had previously been addressed by Judge O’Neill in 2018 WL 4373021, at *1-2, and again in 16 the pending findings and recommendations, (Doc. No. 6 at 3-5)—which the court need not 17 reiterate. It is notable, however, that plaintiff appears to misunderstand what “imminent danger 18 of serious physical injury” means under § 1915(g) given the arguments advanced in his 19 objections. Plaintiff’s objections fail to show how he has plausibly pled “an ongoing danger,” as 20 opposed to merely past injuries or adverse administrative actions by defendants. See Andrews v. 21 Cervantes, 493 F.3d 1047, 1057 n.11 (9th Cir. 2007) (assertions of imminent danger may be 22 rejected if “supported by implausible or untrue allegations” or based on past harms). For 23 instance, plaintiff points to the fact that he was allegedly injured by officers named in this action 24 in September 2019, (Doc. No. 14 at 24), and that he was transferred by defendants to a different 25 facility due to safety concerns on October 3, 2019 before this action was filed, (id. at 35). See 26 Andrews, 493 F.3d at 1053 (imminent danger is determined based on “the circumstances at the 27 time of the filing of the complaint”). Rather than establishing an ongoing danger, plaintiff’ 28 allegations, accepted as true, would establish only that he has been subjected to a past danger that 4:40 NS A PIO Te OY VM VI 1 | has apparently been remedied by defendants. Plaintiffs objections, therefore, do not dissuade the 2 | court from adopting the pending findings and recommendations. 3 Finally, plaintiff asks the court to reopen a case that he had filed but was dismissed by 4 | another district judge in San Jose. (Doc. No. at 21.) The court has no jurisdiction over that case 5 | or to issue the order requested by plaintiff; the proper procedure for plaintiff to challenge such a 6 | dismissal is to timely appeal the order of dismissal in that case. 7 If plaintiff pays the required filing fee for this action, he may proceed with amending his 8 || complaint and seek preliminary injunction in a separate motion that he mentions in his objections. 9 Accordingly, it is ordered that: 10 1. The findings and recommendations issued by the magistrate judge on November 19, 11 2019, are adopted in full; 12 2. Pursuant to 28 U.S.C. § 1915(g), plaintiff is not allowed proceed in forma pauperis in 13 this action; and 14 3. If plaintiff wishes to proceed with this action, he shall pay the required $400 filing fee 15 in full within 30 days of the date of service of this order. Any failure to do so will 16 result in the dismissal of this action. 17 | IT IS SO ORDERED. me □ | Dated: _ May 2, 2020 Yel A Yara 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28