(PC) Wilson v. California State Prison Corcoran et al, No. 1:2018cv00424 - Document 3 (E.D. Cal. 2018)

Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Motion to Proceed In Forma Pauperis be DENIED and that Plaintiff be Required to Submit the Filing Fee Within 14 Days of an Or der Adopting These Recommendations re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 3/31/2018. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The new case number is 1:18-cv-00424-DAD-MJS (PC). Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, Plaintiff, 12 v. 13 14 CALIFORNIA STATE PRISON CORCORAN, et al., 15 16 17 Defendants. Case No. 1:18-cv-00424-MJS (PC) FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOURTEEN-DAY OBJECTIONS DEADLINE 18 19 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed on 20 March 28, 2018. (ECF No. 1.) Plaintiff has not prepaid the filing fee as required by Local 21 Rule 121(c). Accompanying his complaint was a motion to proceed in forma pauperis. 22 (ECF No. 2.) For the reasons set forth below, the motion should be denied. 23 I. Motion to Proceed In Forma Pauperis 24 Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a 25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 27 court of the United States that was dismissed on the grounds that it is frivolous, 28 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 1 is under imminent danger of serious physical injury.” 2 A. Actions Dismissed for Failure to State Claim 3 Plaintiff has brought four actions that were dismissed for failing to state a claim. 4 See Wilson v. Tilton, No. 2:06-cv-01031-LKK-PAN (E.D. Cal. Sept. 12, 2006); Wilson v. 5 Schwartz, No. 2:05-cv-01649-GEB-CMK (E.D. Cal. Oct. 31, 2006); Wilson v. Dovey, No. 6 2:06-cv-01032-FCD-EFB (E.D. Cal. March 8, 2007); Wilson v. Veal, No. 2:06-cv-000677 FCD-KJM (E.D. Cal. June 4, 2007). 8 All of Plaintiff s actions noted above were dismissed before March 28, 2018, 9 when Plaintiff filed the present action. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) 10 and is precluded from proceeding in forma pauperis in this action unless at the time the 11 complaint was filed, he was under imminent danger of serious physical injury. 12 B. Imminent Danger Exception 13 The imminent danger exception applies if “the complaint makes a plausible 14 allegation that the prisoner faced „imminent danger of serious physical injury at the time 15 of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit 16 interprets “imminent danger” to mean “ongoing danger,” meaning the prisoner must 17 allege that prison officials have continued with a practice that has injured him or others 18 similarly situated in the past. Id. at 1056-57. 19 A prisoner seeking to invoke the imminent danger exception in § 1915(g) must 20 make specific, credible allegations of imminent danger of serious physical harm. McNeil 21 v. U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006) (citing Kinnell v. Graves, 265 F.3d 22 1125, 1127-28 (10th Cir. 2001), and White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 23 1998)). Vague, speculative, and non-specific allegations are insufficient. See Pauline v. 24 Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009) (plaintiff's vague and conclusory 25 allegations of possible future harm to himself or others are insufficient to trigger the 26 “imminent danger of serious physical injury” exception to dismissal under § 1915(g)); 27 Cooper v. Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006) (plaintiff's allegations that 28 he will commit suicide, or that he has already attempted suicide and will do so again, 2 1 are insufficient to show imminent danger); Luedtke v. Bertrand, 32 F.Supp.2d 1074, 2 1077 (E.D. Wis. 1999) (“[p]laintiff's vague allegation of a conspiracy among the 3 defendants to beat, assault, injure, harass and retaliate against him are not enough. 4 These allegations are insufficient and lack the specificity necessary to show an 5 imminent threat of serious physical injury.”). 6 Here, Plaintiff s complaint fails to reflect that Plaintiff is at imminent risk of 7 suffering “serious physical injury.” 8 Although the complaint is largely incomprehensible and its allegations difficult to 9 decipher, it alleges the following multitude of alleged constitutional violations: Plaintiff 10 was transferred in retaliation for engaging in a protected act, and the transfer did not 11 ensure compliance with his rights under the Americans with Disabilities Act (“ADA”); 12 Defendants have deprived him of certain items, such as a fan and special mattress, he 13 considers medical necessities; he has been seen by a nurse practitioner, while being 14 denied visits by a medical doctor; he seeks but has been denied special transport 15 accommodations, an air mattress with an electric fan, a ban on further video doctor s 16 visits, the return of his toenail clippers, special accommodations on searches conducted 17 when he is out of his cell, a special therapeutic diet, access to the library five days a 18 week, a requirement that all kitchen personnel who handle food wear caps and aprons, 19 and enactment of a long list of procedural and physical changes to the prison. (ECF 20 No. 1 at 20-24.) 21 The Court can identify no allegations in the foregoing or otherwise that indicate 22 Plaintiff is exposed to imminent physical danger from which he needs the Court s 23 protection. 24 II. Conclusion 25 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a District 26 Judge to this action to address the following recommendations. 27 Furthermore, IT IS HEREBY RECOMMENED that Plaintiff s motion to proceed in 28 forma pauperis (ECF No. 2) be denied and that Plaintiff be required to submit the filing 3 1 fee within 14 days of an Order adopting these recommendations. These Findings and Recommendations will be submitted to the United States 2 3 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 4 636(b)(l). Within fourteen (14) days after being served with these Findings and 5 Recommendations, the parties may file written objections with the Court. The document 6 should be captioned 7 Recommendations.” “Objections to Magistrate Judge s Findings and The parties are advised that failure to file objections within the 8 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 9 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 10 1991)). 11 12 13 IT IS SO ORDERED. Dated: March 31, 2018 /s/ 14 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4