Johnson v. Spurgeon ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Case No. 23-cv-00327-JSW 8 Plaintiff, ORDER OF DISMISSAL v. 9 10 D. SPURGEON, et al., Defendants. 11 12 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action and requested 13 leave to proceed in forma pauperis (“IFP”). His motion for leave to proceed IFP was denied under 14 42 U.S.C. § 1915(g), and he was directed to pay the filing fee or show cause why Section 1915(g) 15 does not apply to him. The deadline has passed, and Plaintiff has not paid the filing fee. He has 16 instead filed an “opposition” to the denial of IFP, which the Court construes as his effort to show 17 cause why Section 1915(g) does not apply. 18 Plaintiff argues that the “imminent danger” exception to Section 1915(g) applies because 19 he contracted COVID-19 at Salinas Valley State Prison (“SVSP”), where he is currently housed, 20 in May 2020 and September 2022. The plain language of the imminent danger clause in 21 Section 1915(g) indicates that "imminent danger" is to be assessed at the time the prisoner filed his 22 case. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff filed the instant action 23 in January 2023, four months and over two and half years, respectively, after the two occasions on 24 which he contracted COVID-19. Consequently, his contraction of COVID-19 on those occasions 25 did not mean he was under “imminent danger” at the time he filed his complaint substantially later 26 in time. Moreover, the availability of an effective COVID-19 vaccine precludes a claim of that the 27 virus poses imminent danger, and there is no allegation that the vaccine was not available to him. ] inadequate conditions of his quarantine several months prior to his filing this complaint, and the 2 || Defendants’ denial of a COVID-19 test upon his release from quarantine, when even a positive 3 || result would not be an indicator that he was contagious of at continued risk of harm. 4 In sum, Plaintiff alleges no circumstances in his complaint or his “opposition” establishing 5 || that he was facing imminent danger of serious harm in January 2023, when he filed the complaint. 6 || Consequently, Plaintiff has not shown cause why he is not precluded from proceeding IFP under 7 Section 1915(g). 8 As Plaintiff has not paid the filing fee or shown cause why he is not subject to Section 9 1915(g), this case is DISMISSED without prejudice to Plaintiff filing his claims in a future case in 10 || which he pays the filing fee. 11 The Clerk shall enter judgment and close the file. as 12 IT IS SO ORDERED. 13 || Dated: March 1, 2023 At { i f lyfe, 45 \ | A AEFFWLBY S. WHITE 16 / Unit/d Statey/District Judge 17 Oo Z 18 19 20 21 22 23 24 25 26 27 28