(PC) Keeton v. Lynch ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY ROY KEETON, No. 2:20-cv-2270-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS 14 JEFF LYNCH, et al., AND RECOMMENDATIONS1 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an 18 action brought under 42 U.S.C. § 1983. He seeks leave to 19 proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 20 reasons stated below, the court finds that plaintiff has not 21 demonstrated he is eligible to proceed in forma pauperis. 22 A prisoner may not proceed in forma pauperis: 23 if the prisoner has, on 3 or more prior occasions, while 24 incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 25 dismissed on the grounds that it is frivolous, malicious, 26 27 1 Given plaintiff’s visual impairment, the court has 28 increased the font size of this order. 1 or fails to state a claim upon which relief may be 2 granted, unless the prisoner is under imminent danger 3 of serious physical injury. 4 5 28 U.S.C. § 1915(g). A review of court records reveals that it 6 was determined in Keeton v. Marshall, NO. CV 17-1213-FMO 7 (KS), that plaintiff has “struck out” under 28 U.S.C. § 1915(g). 8 Keeton v. Marshall, NO. CV 17-1213-FMO (KS), 2018 U.S. 9 Dist. LEXIS 156557 (C.D. Cal., June 8, 2018) (findings and 10 recommendations), adopted by 2018 U.S. Dist. LEXIS 156582 11 (C.D. Cal., Sept. 13, 2018). 12 The section 1915(g) exception applies if the complaint 13 makes a plausible allegation that the prisoner faced “imminent 14 danger of serious physical injury” at the time of filing. 28 15 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 16 (9th Cir. 2007). Here, plaintiff advances the following 17 assortment of claims:2 (1) denial of access to the courts and 18 interference with his administrative appeals (ECF No. 14 at 3, 5, 19 11-18); (2) that on September 20, 2020, Officer Jora threatened 20 to make plaintiff’s life miserable and that “plaintiff would 21 probably lose his life by his own hands or he’d have another 22 inmate do his dirty work for him” (id. at 12); (3) that plaintiff 23 was repeatedly charged with false rules violations (see generally 24 2 On November 15, 2021, pursuant to the court’s September 25 9, 2021 order, plaintiff filed an amended complaint. ECF No. 26 14. Prior to filing the amended complaint, plaintiff sought 27 several extensions of time. See ECF Nos. 12 & 13. Those 28 requests are denied as moot. 1 id.); (4) that on May 2, 2020, June 5, 2020, and August 4, 2020, 2 no medical care was summoned for plaintiff’s “major very low 3 diabetic hyperglycemia reaction” reaction (id. at 15, 19); (5) that 4 Dr. Arya changed plaintiff’s diabetes treatment plan, which 5 worsened plaintiff’s condition (id. at 4, 19); and (6) that on 6 October 25, 2020, plaintiff was afraid that Officer Jora had 7 housed him with an inmate who was going to harm plaintiff 8 because the cellmate “acted weird” (id. at 21). While the 9 allegations about failures to summon medical care and Officer 10 Jora threatening plaintiff’s life are certainly troubling, the court 11 notes that plaintiff has not been housed where the alleged 12 violations took place since October 10, 2021. See ECF No. 12 13 (noting new address). More importantly for the instant analysis, 14 however, is that the operative complaint falls short of plausibly 15 alleging that plaintiff faced an imminent danger of serious 16 physical injury when he filed his original complaint on 17 November 10, 2020 (ECF No. 1 at 297). 18 Plaintiff’s application for leave to proceed in forma 19 pauperis must therefore be denied pursuant to § 1915(g). 20 Plaintiff must submit the appropriate filing fee in order to 21 proceed with this action. 22 Accordingly, it is ORDERED that: 23 1. Plaintiff’s requests for extensions of time to file an 24 amended complaint (ECF Nos. 12 & 13) are denied as 25 moot; and 26 ///// 27 ///// 28 ///// 1 2. The Clerk of the Court shall randomly assign a United 2 States District Judge to this action. 3 Further, because plaintiff has not paid the filing fee and is 4 | not eligible to proceed in forma pauperis, it is 5 | RECOMMENDED that: 6 1. Plaintiff's application to proceed in forma pauperis (ECF No. 9) be denied; and 8 2. Plaintiff be ordered to pay the $402 filing fee within 9 | fourteen days from the date of any order adopting these findings 10 | and recommendations and be warned that failure to do so will 11 | result in the dismissal of this action. 12 These findings and recommendations are submitted to the 13 | United States District Judge assigned to the case, pursuant to the 14 | provisions of 28 U.S.C. § 636(b)(1).. Within fourteen days after 15 | being served with these findings and recommendations, any 16 | party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections 18 | to Magistrate Judge’s Findings and Recommendations.” Failure 19 | to file objections within the specified time may waive the right to 20 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 21 | 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th 22 | Cir. 1991). 23 | Dated: February 21, 2022. 24 Hn ( ZZ, EDMUND F. BRENNAN 26 UNITED STATES MAGISTRATE JUDGE 27 28