(PC) Lamon v. CDCR ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LOUIS LAMON, No. 2:22-cv-0703 CKD P 12 Plaintiff, 13 v. ORDER AND 14 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS CORRECTION AND REHABILIATION, 15 et al., 16 Defendants. 17 18 Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights 19 under 42 U.S.C. § 1983 and violations of California law against employees of the California 20 Department of Corrections and Rehabilitation. This proceeding was referred to this court by 21 Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 22 Plaintiff requests leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) reads as 23 follows: 24 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 25 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 26 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 27 physical injury. 28 A review of court records reveals that plaintiff was found to be “struck out” for purposes 1 of 28 U.S.C. §1915(g) in Lamon v. Mey, No. 2:20-cv-1474 TLN KJN P on November 2, 2021. 2 Judgement in that action was final before plaintiff commenced this action. This being the case, 3 plaintiff can only proceed in forma pauperis in this action to the extent he raises a claim asserting 4 imminent danger of serious physical injury. 5 “Imminent danger of serious physical injury” is “a real, present threat, not merely 6 speculative or hypothetical.” Blackman v. Mjening, No. 1:16-cv-1421 LJO GSA P, 2016 WL 7 5815905, *1 (E.D. Cal. Oct. 4, 2016). In order to make a showing of “imminent danger of serious 8 physical injury” an inmate must provide “specific fact allegations of ongoing serious physical 9 injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” 10 Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory 11 assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 12 1998). The “imminent danger” exception is available “for genuine emergencies,” where “time is 13 pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 14 2002). 15 Plaintiff makes several allegations in his complaint; some having to do with his physical 16 well-being and some not. Plaintiff claims several defendants mean him harm and have conspired 17 against him in various ways, but the allegations are either too vague and conclusory to amount to 18 a showing of “imminent danger”1 or not based in reality.2 19 In light of the foregoing, the court will recommend that plaintiff’s request for leave to 20 proceed in forma pauperis be denied and that plaintiff be granted fourteen days within which to 21 pay the $402 filing fee for this action. 22 ///// 23 24 1 For example, plaintiff claims California Health Care Facility employees are “intentionally staging [plaintiff] for physical altercations with other inmates . . . and otherwise sadistically 25 leveraging [plaintiff’s] health, safety and well being. . .” ECF No. 1-2 at 2. 26 2 For example, plaintiff asserts he is intentionally housed next to inmates who use their 27 Continuous Positive Airway Pressure (CPAP) machines to “bombard” plaintiff with “concentrated electromagnetic energy fields” which causes plaintiff depression, pain, irregular 28 heartbeat and several other maladies. ECF No. 1-2 at 5. ] Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 2 || court judge to this case. 3 IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) be denied; and 5 2. Plaintiff be ordered to pay the $402 filing fee within 14 days. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen after 8 | being served with these findings and recommendations, plaintiff may file written objections with 9 || the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time 11 || waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 12 | 1991). ANI fe fo. AG 4 CAROLYNK.DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 inay 19 lamo0703.3ks 20 21 22 23 24 25 26 27 28