(PC) Williams v. Bauer et al, No. 2:2012cv02158 - Document 12 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/05/12 recommending that plaintiff's application to proceed in forma pauperis 11 be denied. This action be dismissed without prejudice to refiling upon prepayment of the $350.00 filing fee. MOTION to PROCEED IN FORMA PAUPERIS 11 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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(PC) Williams v. Bauer et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LONNIE CLARK WILLIAMS, JR., Plaintiff, 11 12 vs. 13 No. 2:12-cv-2158 MCE EFB P D. BAUER, et al., 14 15 Defendants. FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). 18 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 19 For the reasons explained below, the court finds that plaintiff has not demonstrated she is 20 21 22 23 eligible to proceed in forma pauperis. A prisoner may not proceed in forma pauperis, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 24 28 U.S.C. § 1915(g). On at least three prior occasions, plaintiff has brought actions 25 while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim 26 upon which relief may be granted. See (1) Williams v. Andrews, 1:01-cv-6222 REC HGB P Dockets.Justia.com 1 (E.D. Cal. Feb. 22, 2002) (order dismissing action for failure to state a claim); (2) Williams v. 2 Wood, 1:01-cv-6151 REC LJO P (E.D. Cal. Feb. 28, 2002) (order dismissing action with 3 prejudice for failure to state a claim); and (3) Williams v. Rendon, 1:01-cv-5891 AWI SMS P 4 (E.D. Cal. Mar. 18, 2002) (order dismissing action for failure to state a claim). See also 5 Williams v. Gonzales, 1:03-cv-6770 REC WMW P (E.D. Cal. Sept. 10, 2004) (order designating 6 plaintiff as a three strikes litigant under 28 U.S.C. § 1915(g)). 7 According to the complaint filed in this action, plaintiff is “in imminent danger of 8 irreparable harm, injury and death” because the defendants deliberately poison her foods “daily 9 and continuously.” Dckt. No. I, § II. However, § 1915(g)’s exception does not apply because 10 plaintiff’s allegations of imminent danger are not plausible. See Andrews v. Cervantes, 493 F.3d 11 1047, 1055 (9th Cir. Cal. 2007) (section 1915(g) imminent danger exception applies where 12 complaint makes a “plausible” allegation that prisoner faced imminent danger of serious physical 13 injury at the time of filing.). Plaintiff’s application for leave to proceed in forma pauperis must 14 therefore be denied pursuant to § 1915(g). 15 Moreover, the “court has the inherent power to restrict a litigant’s ability to commence 16 abusive litigation in forma pauperis.” Visser v. Supreme Court of California, 919 F.2d 113, 114 17 (9th Cir. 1990) (citing In re McDonald, 489 U.S. 180 (1989)). The court has informed plaintiff, 18 on numerous occasions, that her allegations about being poisoned are not plausible. See 19 Williams v. Norton, 2:12-cv-2889 CKD (E.D. Cal. Dec. 4, 2012) (finding plaintiff’s allegations 20 of being poisoned implausible and denying application to proceed in forma pauperis); Williams 21 v. CDCR, 2:12-cv-1616 JAM EFB (E.D. Cal. Aug 1. 2012) (finding implausible plaintiff’s 22 allegations of being poisoned, and recommending that plaintiff’s in forma pauperis status be 23 denied), adopted (E.D. Cal. Oct. 29, 2012); Williams v. Willie, CIV S-11-1532 MCE DAD (E.D. 24 Cal. Mar. 16, 2012) (finding implausible plaintiff’s allegations of being poisoned, noting that she 25 had been making such claims since 2006, and determining that the imminent danger exception of 26 § 1915(g) did not apply), adopted (E.D. Cal. Apr. 23, 2012); Williams v. Gomez, 2:11-cv-0426 2 1 GEB EFB (E.D. Cal. Dec. 21, 2011) (finding implausible plaintiff’s allegations of being 2 poisoned and denied HIV medication, and recommending that plaintiff’s in forma pauperis status 3 be revoked), adopted (E.D. Cal. Feb. 6, 2012). Nevertheless, plaintiff continues to initiate 4 lawsuits in forma pauperis, on the grounds that the imminent danger exception applies based on 5 her allegations of being poisoned on a daily basis and/or being denied her HIV medications. See, 6 e.g., Williams v. Bal, 2:12-cv-1005 LKK EFB (E.D. Cal) (April 17, 2012 complaint alleging 7 imminent danger of injury or death because she was denied HIV medication and prison officials 8 were poisoning her food); Williams v. Wedell, 2:12-1438 GEB GGH (E.D. Cal.) (May 29, 2012 9 complaint alleging denial of HIV medication and imminent danger because of poisoning); 10 Williams v. Nappi, 2:12-cv-1604 GEB CMK (E.D. Cal.) (June 14, 2012 complaint alleging 11 imminent danger because of daily poisoning); Williams v. CDCR, 2:12-cv-1616 JAM EFB (E.D. 12 Cal.) (June 15, 2012 complaint alleging the same). Given these filings, the court finds that 13 plaintiff’s application for leave to proceed in forma pauperis should also be denied because 14 plaintiff has “engaged in a pattern of litigation which is manifestly abusive.” Visser, 919 F. 2d at 15 114. 16 Accordingly, it is hereby RECOMMENDED that: 17 1. Plaintiff’s application to proceed in forma pauperis (Dckt. No. 11) be denied; and 18 2. This action be dismissed without prejudice to re-filing upon pre-payment of the $350 19 filing fee. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 25 //// 26 //// 3 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: December 5, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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