(PC) Wilson v. Sherman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, Case No.: 1:22-cv-00874 JLT SKO (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 STUART SHERMAN, et al., (Doc. 5) 15 Defendants. ORDER DIRECTING PAYMENT OF INMATE FILING FEE BY CALIFORNIA 16 DEPARTMENT OF CORRECTIONS 17 18 Plaintiff David W. Wilson is appearing pro se in this civil rights action brought pursuant 19 to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s Application to Proceed In Forma 20 Pauperis (IFP) by a Prisoner filed July 25, 2022. (Doc. 5.) 21 I. DISCUSSION 22 Plaintiff is subject to 28 U.S.C. § 1915, which provides that “[i]n no event shall a prisoner 23 bring a civil action . . . under this section 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 25 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 26 which relief may be granted, unless the prisoner is under imminent danger of serious physical 27 injury.” 28 U.S.C. § 1915(g). 1 Because Plaintiff has accrued three “strikes” under section 1915(g),1 Plaintiff must show 2 that he is under imminent danger of serious physical injury at the time of the filing of his 3 complaint in order to bring this action. Andrews v. Cervantes, 493 F.3d 1047, 1053-1056 (9th 4 Cir.2007). “[T]he availability of the [imminent danger] exception turns on the conditions a 5 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Id. at 1053. 6 While the injury requirement is merely procedural rather than a merits-based review of the 7 claims, the allegations of imminent danger must still be plausible. Id. at 1055. As Plaintiff has 8 made that required showing, the Court will grant his motion. 9 A. Plaintiff’s Complaint 10 Plaintiff’s complaint2 asserts a claim of deliberate indifference to medical needs in 11 violation of the Eighth Amendment. Plaintiff contends the facility where he is housed—California 12 Substance Abuse Treatment Facility (SATF) in Corcoran—has inadequate ventilation and cooling 13 systems, he is refused adequate drinking water and the water may be contaminated, and that black 14 mold is present in the buildings. He contends he suffers from severe physical pain and heat 15 stroke, including dizziness and headaches that exacerbate his existing disabilities (Doc. 1 at 5, 19- 16 20 [first cause of action].) Plaintiff also contends his “Fourteenth Amendment Equal Protection” 17 rights were violated due to inadequate shelter and the denial of protected rights, causing him 18 physical harm. That harm includes overcrowding in facilities without adequate cooling and 19 ventilation and exposure to black mold, and inadequate toilet facilities leading to incontinence. 20 (Doc. 1 at 6, 20 [second cause of action].) 21 Plaintiff next alleges supervisory staff are deliberately indifferent in violation of his 22 Eighth Amendment rights, for “breach[ing] their duties to legal administer the prison, and train 23 1 The Court takes judicial notice of the following United States District Court Cases: (1) Wilson v. Tilton, 24 Case No. 2:06-cv-01031-LKK-PAN (E.D. Cal.) (dismissed September 12, 2006, for failure to state a claim); (2) Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB-CMK (E.D. Cal.) (dismissed October 31, 2006, for failure to state 25 a claim); (3) Wilson v. Dovey, Case No. 2:06-cv-01032-FD-EFB (E.D. Cal.) (dismissed March 8, 2007, for failure to state a claim); and (4) Wilson v. Veal, Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal.) (dismissed June 4, 2007, for 26 failure to state a claim). See Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015). 27 2 Plaintiff initially used a form complaint, (Doc. 1 at 1-8), and supplemented the form with a document entitled “Complaint for Temporary and Permanent Injunction and Protections and Enforcement and Sanctions Relief for 1 and supervise subordinates” leading to “incorrect[] temperatures taken to deny cooling measures, 2 ice, ice drinks, fans, water fountains working for cold water,” contaminated water and black 3 mold, placing Plaintiff in imminent danger of “toxic inmumane [sic] exposure to risk of serious 4 substantial harm, future harm….” (Doc. 1 at 7, 20-21 [third cause of action].) 5 In his prayer for relief, Plaintiff seeks, in part, an order for portable swamp coolers, water 6 fountains and personal fans, water testing, black mold testing and abatement, changes to double 7 bunking, a “Protection ORDER [for] all personal property …,” an “Enforcement ORDER” issued 8 to SATF for compliance and sanctions, for “reasonable attorney’s fees and cost of suit, including 9 expert fees,” and for such other and further relief the Court deems proper. (Doc. 1 at 8, 21-23.) 10 B. The Imminent Danger Exception 11 Liberally construed, Plaintiff’s complaint plausibly alleges he is in imminent danger of 12 serious injury. Plaintiff contends he is suffering serious physical injuries as a result of the 13 inadequate ventilation and cooling systems and inadequate toilet facilities at SATF because of 14 “heat risk” and the fact he is over 60 years of age, his existing conditions are exacerbated and he 15 experiences dizziness, headaches, incontinency and breathing problems. 16 At this stage of the proceedings, where the Court is considering Plaintiff’s application to 17 proceed IFP, the merits of Plaintiff’s claims are not considered. Instead, as the Ninth Circuit 18 Court of Appeals has held, the Court considers whether Plaintiff has plausibly demonstrated the 19 existence of an imminent danger of serious physical injury—which he has done. See Andrews v. 20 Cervantes, 493 F.3d at 1055. 21 Because Plaintiff has made the showing required by § 1915(a), his request to proceed in 22 forma pauperis will be granted. Plaintiff is obligated to pay the statutory filing fee of $350 for 23 this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments in the 24 amount of twenty percent (20%) of the preceding month’s income credited to Plaintiff’s trust 25 account. The California Department of Corrections is required to send to the Clerk of the Court 26 payments from Plaintiff’s trust account each time the amount in the account exceeds $10.00, until 27 the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The Court notes Plaintiff’s complaint will be screened in due course. See 28 U.S.C. § 2 1915A(a). 3 II. CONCLUSION AND ORDER 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s application to proceed IFP (Doc. 5) is GRANTED; 6 2. The Director of the California Department of Corrections or his or her designee 7 shall collect payments from Plaintiff’s prison trust account in an amount equal to 8 twenty percent (20%) of the preceding month’s income credited to the prisoner’s 9 trust account and shall forward those payments to the Clerk of the Court each 10 time the amount in the account exceeds $10, in accordance with 28 U.S.C. § 11 1915(b)(2), until a total of $350 has been collected and forwarded to the Clerk of 12 the Court. The payments shall be clearly identified by the name and number 13 assigned to this action; 14 3. The Clerk of the Court is directed to serve a copy of this order and a copy of 15 Plaintiff’s IFP application on the Director of the California Department of Corrections, 16 via the Court’s electronic case filing system (CM/ECF); and 17 4. The Clerk of the Court is directed to serve a copy of this order on the Financial 18 Department, U.S. District Court, Eastern District of California. 19 IT IS SO ORDERED. 20 21 Dated: August 4, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27