(PC) DeVon v. Cruz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALAN DEVON, No. 1:21-cv-00472-NONE-EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND REQUIRING 13 v. PLAINTIFF TO PAY THE FILING FEE IN THIS ACTION 14 E. CRUZ, et al., (Doc. No. 4) 15 Defendants. 16 17 Plaintiff Alan DeVon is a state prisoner proceeding pro se in this civil rights action. 18 Plaintiff filed the complaint commencing this action on March 22, 2021. (Doc. No. 1.) Plaintiff 19 did not pay the filing fee or file an application to proceed in forma pauperis. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On March 24, 2021, the assigned magistrate judge issued findings and recommendations 23 recommending that plaintiff not be allowed to proceed in forma pauperis and instead be directed 24 to pay the required filing fee in full if she wishes to proceed with this action because: (1) she is 25 subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations in her complaint 26 do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 27 No. 4.) Those findings and recommendations were served on plaintiff and contained notice that 28 any objections thereto were to be filed within fourteen (14) days from the date of service. (Id.) 1 On April 26, 2021, plaintiff’s objections dated March 30, 2021 were docketed. (Doc. No. 2 6.) Therein, plaintiff does not dispute the magistrate judge’s finding that she has brought three or 3 more prior federal civil actions that were dismissed on the grounds specified in § 1915(g). 4 Rather, plaintiff argues that the imminent danger exception of § 1915(g) applies here. (See id. at 5 1–3.) 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 7 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 8 objections, the court finds the findings and recommendations to be supported by the record and 9 by proper analysis. 10 The availability of the imminent danger exception “turns on the conditions a prisoner 11 faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 12 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Additionally, “the complaint of a three-strikes 13 litigant must reveal a nexus between the imminent danger it alleges and the claims it asserts, in 14 order for the litigant to qualify for the ‘imminent danger’ exception of section 1915(g).” Stine v. 15 Fed. Bureau of Prisons, No. 1:13-CV-1883 AWI MJS, 2015 WL 5255377, at *3 (E.D. Cal. Sept. 16 9, 2015) (citation omitted). While the court does not seek to minimize the alleged events from 17 which plaintiff’s claims arose, it is clear that those claims arise from actions allegedly taken by 18 prison officials at Kern Valley State Prison (“KVSP”), yet plaintiff was transferred to Mule Creek 19 State Prison (“MCSP”) before this action was initiated. (Doc. Nos. 1 at 16–17 (stating she was 20 transferred to MCSP on February 16, 2021), 6 at 2; see also Doc. No. 1 at 3–4 (listing all 21 defendants as KVSP employees).) Thus, it is apparent that by the time plaintiff filed his 22 complaint in this case on March 22, 2021, he was not in any imminent danger of serious physical 23 injury because of the named defendants’ alleged conduct. See Winfield v. Schwarzenegger, No. 24 2:09-cv-0636-KJN-P, 2010 WL 3397397, at *2 (E.D. Cal. Aug. 27, 2010) (“At the time of filing 25 the operative . . . complaint, plaintiff was incarcerated at [CSP-Sacramento]; thus, he is not facing 26 imminent danger of serious physical injury based on allegations against defendant . . . at San 27 Quentin State Prison.”). 28 ///// 1 In her objections, plaintiff argues that she remains in imminent danger because she was 2 | transferred from KVSP to MCSP where she has documented enemies and was placed in the 3 | administrative segregation unit (“ASU”), plus the “mere fact of any woman housed in a man[‘s] 4 | prison and not gender conforming is evident” of imminent danger. (Doc. No. 6 at 2-3; see also 5 | Doc. No. 1 at 17 (stating that she was being placed in ASU “due to a threat on [her] person.”).) 6 | However, as explained in the pending findings and recommendations, plaintiff's complaint “does 7 | not include any factual allegations to support the conclusory allegations that she is in danger at 8 | [MCSP], or that there are no procedures in place to protect her while she is housed there,” 9 | especially since she was placed in ASU due to a threat. (Doc. No. 4 at 4.) Ultimately, the 10 | undersigned agrees with the conclusion reached in the pending findings and recommendations 11 | that the imminent danger exception to § 1915(g)’s three-strikes provision does not apply here. 12 Accordingly, 13 1. The findings and recommendations entered on March 24, 2021 (Doc. No. 4), are 14 adopted in full; 15 2. Pursuant to 28 U.S.C. § 1915(g), plaintiffs application to proceed in forma 16 pauperis in this action must be denied; 17 3. Within thirty (30) days from the date of service of this order, plaintiff is required 18 to pay in full the $402.00 filing fee for this action; 19 4. Plaintiff's failure to pay the required filing fee as ordered will result in the 20 dismissal of this action without prejudice; and 21 5. This case is referred back to the assigned magistrate judge for further proceedings 22 consistent with this order. 23 | IT IS SO ORDERED. me □ Dated: _ August 12, 2021 al, Al 4 a 25 UNITED STATES DISTRICT JUDGE 26 27 28