(PC) Watts v. California Dept. of Corrections ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LEON WATTS, ) Case No.: 1:21-cv-00814-SAB (PC) ) 12 Plaintiff, ) ) ORDER FOR PLAINTIFF TO SHOW CAUSE 13 v. ) WHY REQUEST TO PROCEED IN FORMA PAUPERIS SHOULD NOT BE DENIED 14 CALIFORNIA DEPARTMENT OF ) CORRECTIONS, et al., ) (ECF No. 2) 15 ) ) 16 Defendants. ) ) 17 ) 18 Plaintiff Michael Leon Watts is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 On April 12, 2021, Plaintiff filed the instant complaint and request to proceed in forma 21 pauperis in the United States District Court for the Central District of California. 22 On May 19, 2021, the action was transferred to this Court. 23 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 24 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 25 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 26 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 27 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 28 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 1 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 2 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 3 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 4 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 5 U.S.C. § 1915(g). 6 Here, a review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) 7 and is precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the complaint was 8 filed, under imminent danger of serious physical injury.1 The Court takes judicial notice of the following 9 cases: (1) Watts v. Voglino, No. 3:07-cv-02215-WJN (M.D. Penn. June 2, 2008) (dismissed for failure 10 to state a claim); (2) Watts v. Veach, No. 2:07-cv-310 (S.D. Ind. Jan. 30, 2008) (dismissed for failure to 11 state a claim); and (3) Watts v. Herring, No. 1:99-cv-431 (E.D. Tex. Jan. 2, 2002) (dismissed for failure 12 to state a claim and as frivolous). Plaintiff has been informed previously that he is subject to § 1915(g). 13 See Watts v. Lappin, No. 1:09-cv-930-MAC-ESH (E.D. Tex. Jan. 5, 2010) (dismissed for failure to pay 14 the filing fee after finding Watts suffered three or more strikes under § 1915(g)). 15 Furthermore, based on the complaint, it does not appear that Plaintiff is in imminent danger. To 16 demonstrate imminent danger, Plaintiff must show that he is under (1) imminent danger of (2) serious 17 physical injury and which turns on the conditions he faced at the time he filed his complaint on April 2, 18 2021. Andrews, 493 F.3d at 1053-1056. Conditions which posed imminent danger to Plaintiff at some 19 earlier time are immaterial, as are any subsequent conditions. Id. at 1053. While the injury is merely 20 procedural rather than a merits-based review of the claims, the allegations of imminent danger must still 21 be plausible. Id. at 1055. Plaintiff contends prison officials at California City Correctional Facility 22 failed to protect him from contracting the COVID-19 virus and were deliberately indifferent to his 23 serious medical needs in 2020. While Plaintiff contends he tested positive COVID-19 in November 24 2020 and was denied proper medical treatment, Plaintiff has failed to demonstrate that he is in imminent 25 danger of serious physical injury. Indeed, Plaintiff contracted the virus several months prior to filing 26 the action and he fails to demonstrate how the events at issue relates to an imminent danger of serious 27 28 1 1 || physical injury at the time he filed this action on April 2, 2021. Therefore, the Court will order Plainti 2 show cause why it should not deny Plaintiff's application to proceed in forma pauperis and requi 3 || Plaintiff to pay the $402.00 filing fee. 4 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 5 1. Within twenty (20) days from the date of service of this order, Plaintiff shall show cau: 6 why the Court should not deny his application to proceed in forma pauperis and requi 7 him to pay the $402.00 filing fee; and 8 2. Failure to comply with this order will result in a recommendation to dismiss the actic 9 for failure to comply with a court order and failure to prosecute. 10 11 ||IT IS SO ORDERED. A (Fe 12 Dated: _ June 2, 2021 OF 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28