(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. ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 14, 2023, the Magistrate Judge filed Findings and Recommendations 21 herein which were served on all parties and which contained notice to all parties that 22 any objections to the findings and recommendations were to be filed within fourteen 23 days. (ECF No. 29.) Defendants have filed objections to the Findings and 24 Recommendations. (ECF No. 30.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 26 304, this Court has conducted a de novo review of this case. Having carefully 27 reviewed the entire file, the Court finds the findings and recommendations to be 28 supported by the record and by proper analysis. 1 Defendants’ initial motion (ECF No. 22) and their subsequent objections (ECF 2 No. 30) argue that Plaintiff’s in forma pauperis status should be revoked as Plaintiff has 3 accrued three strikes within the meaning of 28 U.S.C. § 1915(g) and Plaintiff is not 4 presently at imminent danger. The Magistrate Judge determined that while Plaintiff 5 had accrued three strikes, the imminent danger exception applied based on the 6 imminent danger that existed at the time Plaintiff filed this action. (ECF No. 29 at 3.) 7 In their objections, Defendants argue that though there may have been an imminent 8 danger at the time Plaintiff filed the motion, the exception should not apply because 9 he had since been transferred to a different institution and was no longer in danger. 10 (ECF No. 30 at 2–3.) 11 The Ninth Circuit in Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 12 determined that “the availability of the [imminent danger] exception turns on the 13 conditions a prisoner faced at the time the complaint was filed, not at some earlier or 14 later time.” (emphasis added). In doing so the court stated that “[plaintiff’s] removal 15 from the California prison system after filing the complaint is therefore irrelevant to 16 our § 1915(g) analysis.” Id. Additionally, following its ruling in Andrews, Ninth Circuit 17 issued an unpublished decision, Jensen v. Knowles, 250 Fed. Appx. 782 (9th Cir. 18 2007), in which the Court reversed and remanded a district court decision that the 19 imminent danger exception did not apply as the plaintiff in question had since been 20 moved to a different institution. The Ninth Circuit directed the district court to 21 reconsider whether the imminent danger exception applied in light of the Andrews 22 decision. Jensen, 250 Fed. Appx. at 783. 23 Given these decisions, the Magistrate Judge’s Findings and Recommendations 24 recommending that Defendants’ motion be denied as an imminent danger existed at 25 the time of filing is well founded. Pursuant to Andrews, the imminent danger 26 exception must be applied based on the conditions that existed at the time Plaintiff 27 brought the present action. 493 F.3d at 1053. Plaintiff’s subsequent transfer to 28 another institution after bringing this action has no bearing on this determination. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations filed July 14, 2023 (ECF No. 29) are 3 | adopted in full; 4 2. Defendants’ motion to revoke Plaintiff's in forma pauperis status (ECF No. 5 || 22) is denied; and 6 3. This matter is referred back to the Magistrate Judge for all further 7 || proceedings. 8 9 IT |S SO ORDERED. 10 | Dated: _ September 25, 2023 Bek | Cbabeatin.. Hon. Daniel labretta 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 | DJC1 -cox21cv1778.jo 25 26 27 28