(PC) Hammler v. State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:20-cv-00630-DAD-GSA (PC) 12 Plaintiff, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS AND 13 v. REQUIRING PLAINTIFF TO SUBMIT AN IN FORMA PAUPERIS APPLICATION OR PAY 14 STATE OF CALIFORNIA, et al., THE REQUIRED FILING FEE 15 Defendants. (Doc. No. 5) 16 17 18 Plaintiff Allen Hammler is a state prisoner proceeding pro se with this civil rights action 19 pursuant to 42 U.S.C. § 1983. (Doc. Nos. 1.) He has also been deemed a vexatious litigant. (See 20 Doc. No. 2.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(b)(1)(B) and Local Rule 302. 22 On May 8, 2020, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff be denied leave to proceed in forma pauperis under 28 U.S.C. § 24 1915(g) in this action and that he be required to submit the $400.00 filing fee in full within thirty 25 (30) days. (Doc. No. 5.)1 The findings and recommendations were served on plaintiff and 26 27 1 That recommendation was based upon a finding that plaintiff had suffered three prior strike dismissals and that the allegations of his complaint did not qualify him under the “imminent 28 1 contained notice that any objections thereto were to be filed within fourteen (14) days of service. 2 (Id. at 6.) On May 21, 2020, plaintiff filed timely objections. (Doc. No. 8.) 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including plaintiff’s objections, the court will adopt in part the findings and recommendations and 6 order plaintiff to either: 1) submit a complete in forma pauperis application, along with a 7 certified copy of his prison trust account statement for the 6-month period preceding the filing of 8 the complaint; or 2) pay the $400.00 filing fee in full. 9 In his objections, plaintiff contends that he is in imminent danger of serious physical 10 injury because the prison’s failure to provide him with the correct medications caused “a 11 chemical imbalance [which] itself [is] a physical injury.” (Doc. No. 8 at 2.) This chemical 12 imbalance, plaintiff claims, also causes him to feel “freezing cold even in hot/warm places” and 13 experience muscle spasms, tremors, and impaired vision. (Id. at 3.) The undersigned concludes 14 that these allegations satisfy the imminent danger exception to the three strikes bar under 28 15 U.S.C. § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding that 16 “§ 1915(g) concerns only a threshold procedural question” and that “we should not make an 17 overly detailed inquiry” into whether plaintiff’s allegations qualify for the exception); see also 18 Williams v. Paramo, 775 F.3d 1182, 1189-90 (9th Cir. 2015) (“[T]he limited office of § 1915(g) 19 in determining whether a prisoner can proceed in forma pauperis counsels against an overly 20 detailed inquiry into the allegations that qualify for the exception.”). 21 However, plaintiff has failed to demonstrate that he is unable to pay the filing fee. Under 22 28 U.S.C. § 1915(a), he is first required to show that he is indigent by submitting an application 23 to proceed in forma pauperis and a copy of his prison trust account statement. If he meets this 24 required showing but is otherwise barred because he has brought three or more cases that were 25 dismissed as frivolous, malicious, or for failing to state a claim, then he can nevertheless proceed 26 with the action if he can show he was in imminent danger of serious physical injury at the time he 27 filed the complaint. 28 U.S.C. § 1915(g). However, plaintiff may not proceed in forma pauperis 28 based solely on a showing that he was in “imminent danger” at the time he filed his complaint wOAOe £1 ODUM EAE NS SPA MUU OPI Te Ye VV 1 | without first addressing § 1915(a)’s requirements. 2 Accordingly: 3 1. The findings and recommendations issued on May 8, 2020 (Doc. No. 5) are 4 adopted in part; 5 2. Within thirty (30) days of service of this order, plaintiff is directed to either: 6 a. Submit a complete in forma pauperis application, along with a certified 7 copy of his prison trust account statement for the 6-month period preceding 8 the filing of the complaint; or 9 b. Pay the $400.00 filing fee in full for this action; and 10 3. Plaintiff is warned that failure to comply with this order shall result in the 11 dismissal of this case. 12 | Ir Is SO ORDERED. ~ = 13 Li fa £5 Dated: _ June 3, 2020 eee Te > 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28