(PC) Fletcher v. Sherman, No. 1:2018cv01074 - Document 9 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's In Forma Pauperis Status be Revoked re 7 Under 28 USC 1915(g) and that Plaintiff be Required to Pay the $400.00 Filing Fee in Full within Thirty Days, signed by Magistrate Judge Gary S. Austin on 10/5/18. Referred to Judge Drozd; Objections to F&R Due Within 14-Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY L. FLETCHER, 12 Plaintiff, 13 vs. 14 15 STU SHERMAN, Defendant. 16 1:18-cv-01074-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S IN FORMA PAUPERIS STATUS BE REVOKED UNDER 28 U.S.C. § 1915(g) AND THAT PLAINTIFF BE REQUIRED TO PAY THE $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS (ECF No. 1.) OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 18 19 I. BACKGROUND 20 Gregory L. Fletcher (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On July 6, 2018, Plaintiff 22 filed the Complaint commencing this action at the United States District Court for the Northern 23 District of California. (ECF No. 1.) On August 10, 2018, the case was transferred to this court. 24 (ECF No. 6.) On August 17, 2018, the court issued an order granting Plaintiff leave to proceed 25 in forma pauperis with this action. (ECF No. 7.) 26 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 27 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that 28 “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 1 1 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 2 in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, 3 or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 4 danger of serious physical injury.” 5 III. ANALYSIS 6 A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 7 1915(g) and should be precluded from proceeding in forma pauperis unless Plaintiff was, at the 8 time the Complaint was filed, under imminent danger of serious physical injury. Court records 9 reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that 10 were dismissed as “strikes” under 28 U.S.C. 1915(g). The Court takes judicial notice of the 11 following four cases: (1) Fletcher v. Johnson, No. 2:16-cv-2136-EFB-P (E.D. Cal.) (dismissed 12 on September 13, 2017, for failure to file amended complaint (see Harris v. Mangum, 863 F.3d 13 1113, 1143 (9th Cir. 2017)); (2) Fletcher v. Erquiza, No. 4:16-cv-04423-YGR (N.D. Cal.) 14 (dismissed on February 17, 2017, for failure to exhaust remedies, clear on face of complaint (see 15 El-Shaddai v. Zamora, 833 F.3d 1036, 1043-44 (9th Cir. 2016)); (3) Fletcher v. Sugura, 4:16-cv- 16 03920-YGR (N.D. Cal.) (dismissed on January 10, 2017, for failure to state a claim under section 17 1983)); and (4) Fletcher v. Mendez, No. 4:16-cv-03110-YGR (N.D. Cal.) (dismissed on February 18 13, 2017, for failure to file amended complaint (see Harris v. Mangum, 863 F.3d 1113, 1143 (9th 19 Cir. 2017)). The court has reviewed the orders dismissing and closing the four cases listed above, 20 and finds that the cases were all properly dismissed as “strikes” under 28 U.S.C. 1915(g). 21 The availability of the imminent danger exception turns on the conditions a prisoner faced 22 at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 23 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less obviously 24 injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent 25 danger of serious physical injury must be a real, present threat, not merely speculative or 26 hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact 27 allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 28 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th 2 1 Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. 2 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the “imminent danger” exception is 3 available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and 4 proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 5 The Court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does 6 not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint, 7 Plaintiff alleges that on February 12, 2018, he lost his job at the prison because he participated 8 in a hunger strike, and his subsequent request to be placed in a job assignment was denied due to 9 his disability. 10 Plaintiff has not shown that he was under serious risk of imminent physical harm at the 11 time he filed the Complaint for this action. The Complaint is devoid of any showing that Plaintiff 12 was under imminent danger of serious physical injury at the time he filed the Complaint. 13 Therefore, Plaintiff’s in forma pauperis status should be revoked, and he should be 14 required to submit the appropriate filing fee in full for this action before this case proceed. 15 IV. CONCLUSION AND RECOMMENDATIONS 16 Based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. Plaintiff’s in forma pauperis status be revoked, pursuant to 28 U.S.C. § 1915(g); 18 2. The court’s order granting Plaintiff’s application to proceed in forma pauperis 19 and directing payment of the filing fee by the CDCR, issued on August 17, 2018, 20 be VACATED; 21 4. thirty days;1 and 22 23 Plaintiff be required to pay the $400.00 filing fee in full for this action, within 5. The Clerk be DIRECTED to serve a copy of this order on the Director of the CDCR and the Court’s Financial Department. 24 25 26 27 28 To date, the court has not received any payment for Plaintiff’s filing fee in this case. (Court Financial Records.) The filing fee for this action is $350.00 plus a $50.00 administrative fee. 28 U.S.C. § 1914. The $50.00 administrative fee does not apply to persons granted in forma pauperis status. Id. Therefore, Plaintiff now owes a $400.00 filing fee. 1 3 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days from the date of service of these findings and recommendations, Plaintiff may file 4 written objections with the court. 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 (9th Cir. 1991)). Such a document should be captioned “Objections to 9 10 11 12 IT IS SO ORDERED. Dated: October 5, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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