(PC) Hammler v. Dignity Health ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:20-cv-01778-JLT-HBK 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. No. 15) 14 DIGNITY HEALTH, ET. AL., 15 Defendants. 16 17 Allen Hammler initiated this action as a prisoner proceeding pro se by filing a civil rights 18 complaint under 42 U.S.C. § 1983. (Doc. No. 1.) The matter was referred to the assigned United 19 States magistrate judge under 28 U.S.C. § 636(b)(1)(B) and Eastern District of California Local 20 Rule 302. 21 On December 1, 2021, the magistrate judge issued findings and recommendations 22 recommending that the district court deny Plaintiff’s motion for leave to proceed in forma 23 pauperis because Plaintiff qualifies as a three-striker under 28 U.S.C. § 1915(g) and the 24 Complaint did not contain sufficient facts to allege imminent danger of serious physical injury. 25 (Doc. No. 15 at 2-8.) The magistrate judge recommended the district court direct Plaintiff to pay 26 the full filing fee or face dismissal of the action. (Id. at 11.) Additionally, or alternatively, the 27 magistrate judge recommended the district court deny Plaintiff’s motion to proceed in forma 28 pauperis because Plaintiff had sufficient funds in his inmate account to pay the full filing fee. (Id. 1 at 8-11.) The findings and recommendations served on Plaintiff contained notice that any 2 objections were due within fourteen days. (Id. at 11.) Plaintiff timely filed objections on January 3 18, 2022 after receiving an enlargement of time. (Doc. No. 19.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 6 findings and recommendations to be supported by the record and by proper analysis. In his 7 objections, Plaintiff argues, among other things, that the findings and recommendations 8 overlooked key factual allegations that, in his opinion, support a finding of imminent harm. (Doc. 9 No. 19.) In particular, the objections emphasize that the complaint alleges that Defendant 10 Cervantes used excessive force against Plaintiff in September 20191, resulting in several serious 11 injuries. (Doc. 1 at ¶ 2.) The complaint then describes numerous interactions between Plaintiff, 12 Cervantes, and other correctional employees over the course of the next year that Plaintiff 13 perceived as threatening. Even assuming that Plaintiff’s perceptions of those events are plausible, 14 Plaintiff still does not allege an imminent threat of physical harm. Apart from one interaction in 15 which Plaintiff’s fingers had to be pried from his food port door resulting in minor lacerations, 16 none of the interactions describe physical touching at all. Moreover, the alleged use of excessive 17 force in September 2019 took place more than a year before he filed his complaint in December 18 2020. His allegations do not demonstrate that he faced imminent danger of physical injury at the 19 time his complaint was filed. 20 In addition, as the findings and recommendations correctly point out, even assuming 21 Plaintiff could satisfy the imminent danger exception, he had at the time of the filing of his 22 complaint sufficient funds in his trust fund account to pay the filing fee, so is not entitled to 23 proceed in forma pauperis on that ground alone. As of August 2021, Plaintiff had more than 24 $800.00 in his prison account. (See Docs. 1, 12.) Plaintiff asserts in his objections that he now 25 has only $250.00 in his account to “pay for food.” That is not dispositive. A court need not 26 1 The complaint on occasion describes this event as occurring in September 2020 (see Doc. 1 at ¶ 2), but when read 27 in the context of the entire complaint, it appears the excessive force event took place in September 2019 (see id at ¶¶ 1–2 (explaining that complained of interactions at the hospital occurred on September 9, 2019, several days after the 28 alleged use of excessive force)). 1 | authorize a party to proceed in forma pauperis where that individual had the funds to pay the 2 | filing fee, but subsequently chose to spend them elsewhere. See Evans v. Sherman, No. 1:19-CV- 3 | 00760-LJO- JLT(PC), 2019 WL 5309110, at *1 (E.D. Cal. Oct. 21, 2019). Accordingly, the Court 4 | ORDERS: 5 1. The findings and recommendations issued on December 1, 2021 (Doc. No. 15) are 6 | adopted in full. 7 2. Plaintiffs motion to proceed in forma pauperis is DENIED. 8 3. Plaintiff shall pay the $402.00 filing fee within 30 days of the date of this order or this 9 | matter will be summarily dismissed. 10 IT IS SO ORDERED. 12 | Dated: _ January 21, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28