(PC) Cox v. Daram ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST LEE COX, Jr., No. 2:21-cv-01778-DJC-JDP (PC) 12 Plaintiff, 13 v. AMENDED ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 On October 10, 2023, Plaintiff filed a motion in which he correctly noted that a 18 portion of the Court’s September 26, 2023 order could be misconstrued as a 19 determination that Plaintiff had accrued three strikes when the Court had not reached 20 that conclusion. Accordingly, the Court vacates the prior order and issues this 21 amended order. 22 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 23 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 24 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 25 On July 14, 2023, the Magistrate Judge filed Findings and Recommendations 26 herein which were served on all parties and which contained notice to all parties that 27 any objections to the findings and recommendations were to be filed within fourteen 28 //// 1 days. (ECF No. 29.) Defendants have filed objections to the Findings and 2 Recommendations. (ECF No. 30.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 4 304, this Court has conducted a de novo review of this case. Having carefully 5 reviewed the entire file, the Court finds the findings and recommendations to be 6 supported by the record and by proper analysis. 7 Defendants’ initial motion (ECF No. 22) and their subsequent objections (ECF 8 No. 30) argue that Plaintiff’s in forma pauperis status should be revoked as Plaintiff has 9 accrued three strikes within the meaning of 28 U.S.C. § 1915(g) and Plaintiff is not 10 presently at imminent danger. The Magistrate Judge determined that even if, for 11 purposes of argument, Plaintiff had accrued three strikes, the imminent danger 12 exception applied based on the imminent danger that existed at the time Plaintiff filed 13 this action. (ECF No. 29 at 3.) In their objections, Defendants argue that though there 14 may have been an imminent danger at the time Plaintiff filed the motion, the 15 exception should not apply because he had since been transferred to a different 16 institution and was no longer in danger. (ECF No. 30 at 2–3.) 17 The Ninth Circuit in Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 18 determined that “the availability of the [imminent danger] exception turns on the 19 conditions a prisoner faced at the time the complaint was filed, not at some earlier or 20 later time.” (emphasis added). In doing so the court stated that “[plaintiff’s] removal 21 from the California prison system after filing the complaint is therefore irrelevant to 22 our § 1915(g) analysis.” Id. Additionally, following its ruling in Andrews, Ninth Circuit 23 issued an unpublished decision, Jensen v. Knowles, 250 Fed. Appx. 782 (9th Cir. 24 2007), in which the Court reversed and remanded a district court decision that the 25 imminent danger exception did not apply as the plaintiff in question had since been 26 moved to a different institution. The Ninth Circuit directed the district court to 27 reconsider whether the imminent danger exception applied in light of the Andrews 28 decision. Jensen, 250 Fed. Appx. at 783. 1 Given these decisions, the Magistrate Judge’s Findings and Recommendations 2 || recommending that Defendants’ motion be denied as an imminent danger existed at 3 | the time of filing is well founded. Pursuant to Andrews, the imminent danger 4 | exception must be applied based on the conditions that existed at the time Plaintiff 5 | brought the present action. 493 F.3d at 1053. Plaintiff's subsequent transfer to 6 || another institution after bringing this action has no bearing on this determination. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Court's order issued September 26, 2023 (ECF No. 31) is vacated; 9 2. The Findings and Recommendations filed July 14, 2023 (ECF No. 29) are 10 | adopted in full; 11 2. Defendants’ motion to revoke Plaintiff's in forma pauperis status (ECF No. 12 | 22) is denied; and 13 3. This matter is referred back to the Magistrate Judge for all further 14 | proceedings. 15 16 17 IT |S SO ORDERED. 1g | Dated: _October 16, 2023 _ Bead J oBbeatie Hon. Daniel labretta 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 || DJC1-cox21¢v1778,jo 24 25 26 27 28