Williams v. Murray et al
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 06/09/11 denying 8 Motion for Reconsideration. Plaintiff shall pay the $350.00 filing fee in full within 30 days from the date of this order or face a recommendation that this action be dismissed for failure to pay the filing fee. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LONNIE WILLIAMS,
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Plaintiff,
No. 2:11-cv-0069 MCE JFM (PC)
vs.
M. MURRAY, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
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42 U.S.C. § 1983. Plaintiff filed the original complaint on January 7, 2011. On April 8, 2011,
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the undersigned issued an order finding plaintiff ineligible to proceed in forma pauperis pursuant
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to 28 U.S.C. 1915(g) and requiring plaintiff to pay the $350.00 filing fee for this action within
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thirty days. On April 18, 2011, plaintiff filed a request for the court to reconsider its order.
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DISCUSSION
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Motions to reconsider are committed to the discretion of the trial court. Combs v.
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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460
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(9th Cir. 1983) (en banc). The Local Rules provide that when filing a motion for reconsideration,
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a party show that the “new or different facts or circumstances claimed to exist which did not exist
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or were not shown upon such prior motion, or what other grounds exist for the motion.” Local
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Rule 230(j).
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Plaintiff requests reconsideration of the court’s April 8, 2011 order finding him
ineligible to proceed in forma pauperis under 28 U.S.C. § 1915(g). Plaintiff argues that he is
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eligible to proceed in forma pauperis because at the time he filed the complaint for this action, he
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was under imminent danger of serious physical injury.
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Section 1915 of Title 28 of the United States Code governs proceedings in forma
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pauperis. Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . .
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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained
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in any facility, brought an action or appeal in a court of the United States that was dismissed on
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the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
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granted, unless the prisoner is under imminent danger of serious physical injury.”
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The court has found that plaintiff has had three or more actions dismissed as
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frivolous, as malicious, or for failing to state a claim upon which relief may be granted. The
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court also found that plaintiff was not under imminent danger at the time he filed the complaint.
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However, plaintiff argues that at the time he filed the complaint, he was under imminent danger
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because he was being deliberately poisoned with arsenic by correctional officers. The court has
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re-reviewed the original complaint. The court has also reviewed two unrelated cases currently
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pending before the undersigned1 (2:10-cv-3408-MCE-JFM and 2:11-cv-1095-KJM-JFM), as well
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as multiple cases filed by plaintiff since 2006 (see, e.g., 1:06-cv-1408-AWI-SMS). In all of these
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cases, plaintiff alleges that prison officials have been and continue to poison him with arsenic.
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Following examination of more than ten complaints filed by plaintiff in which he
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sets forth similar, if not identical, allegations2, the undersigned finds that plaintiff does not
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qualify for the imminent danger exception under 28 U.S.C. § 1915(g). “Prisoners qualify for
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A court “ ‘may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v.
Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d
801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council
v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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In addition to this case and the three cases previously cited, plaintiff alleges arsenic
poisoning in, inter alia, the following cases filed in this district: 2:06-cv-1167-GEB-JFM; 1:07cv-0263-AWI-MWM; 1:07-cv-0298-LJO-SMS; 1:07-cv-0405-OWW-DLB;
1:09-cv-01882-LJO-GSA; 1:10-cv-00952-LJO -DLB; and 2:11-cv-00426-GEB-EFB.
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[this] exception based on the alleged conditions at the time the complaint was filed. And
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qualifying prisoners can file their entire complaint IFP; the exception does not operate on a
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claim-by-claim basis or apply to only certain types of relief.” Andrews v. Cervantes, 493 F.3d
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1047, 1052 (9th Cir. 2007). However, “the exception applies if the complaint makes a plausible
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allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of
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filing.” Id. at 1055 (emphasis added); see also In re Gonzales, 2008 WL 666465 (N.D. Cal.
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2008). Here, plaintiff has been alleging arsenic poisoning since 2006. The plausibility of his
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claim is belied by the fact that he remains alive despite arsenic poisoning for over five years by
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over thirty prison officials.
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The court concludes that plaintiff did not fit within the exception for an inmate
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under imminent danger of serious physical injury at the time he filed this complaint. Section
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1915(g) applies and bars in forma pauperis status for plaintiff in this action.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for reconsideration is denied;
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2. Plaintiff shall pay the $350 filing fee in full within thirty days from the date of
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this order or face a recommendation that this action be dismissed for failure to pay the filing fee.
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DATED: June 9, 2011.
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