(PC) Lamon v. Pfeiffer

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 BARRY LOUIS LAMON, ) Case No.: 1:20-cv-00896-AWI-SAB (PC)

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12 Plaintiff, )

) FINDINGS AND RECOMMENDATIONS

13 v. ) REGARDING DEFENDANTS’ MOTION TO

REVOKE PLAINTIFF’S IN FORMA PAUPERIS

14 C. PFEIFFER, et.al., ) STATUS

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15 Defendants. ) (ECF No. 39)

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16 )

17 Plaintiff Barry Louis Lamon is appearing pro se and in forma pauperis in this civil rights

18 action pursuant to 42 U.S.C. § 1983.

19 Currently before the Court is Defendants’ motion to revoke Plaintiff’s in forma pauperis status,

20 filed on April 7, 2021.

21 I.

22 RELEVANT BACKGROUND

23 This action is proceeding on Plaintiff’s separate claims for retaliation against Defendants

24 Jones, Moffett, Moore, Alvarez, Eaker, Gonzalez, Rivera-Sierra, Ronquillo, Luna, Ramirez, Goss,

25 Bennett-Beach and Velasco, separate claims for failure to protect against Defendants Corona, Loera,

26 Ramirez, Eaker, Luna Jones, Moffett, Moore, Alvarez, Ronquillo, Luna, Rivera-Sierra and Clare,

27 Bane Act claim against Corona, Loera, Jones, Moffett, Moore, Alvarez, Eaker, Gonzalez, Rivera-

28 Sierra, Ronquillo, Luna, Ramirez, Goss, Bennett-Beach, Velasco, and intentional infliction of

1 emotional distress claim against Defendants Corona, Loera, Jones, Moffett, Moore, Alvarez, Eaker,

2 Gonzalez, Rivera-Sierra, Ronquillo, Luna, Ramirez, Goss, Bennett-Beach, Velasco.

3 On March 30, 2021, Defendants filed waivers of service of process. (ECF No. 38.)

4 On April 7, 2021, Defendants filed the instant motion to revoke Plaintiff’s in forma pauperis

5 status. (ECF No. 39.) After receiving an extension of time, Plaintiff filed an opposition on May 27,

6 2021, and Defendants filed a reply on June 11, 2021. (ECF Nos. 43, 44.)

7 On June 21, 2021, Plaintiff filed a sur-reply. (ECF No. 45.) On July 12, 2021, Defendants

8 filed an opposition to the sur-reply, and Plaintiff filed a response on July 22, 2021.1 (ECF Nos. 46,

9 47.)

10 II.

11 LEGAL STANDARD

12 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner

13 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). 28 U.S.C. §

14 1915(g) provides that “In no event shall a prisoner bring a civil action ... under this section if the

15 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an

16 action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

17 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under

18 imminent danger of serious physical injury.” “[I]f the language of a statute is clear, we look no further

19 than that language in determining the statute's meaning,” unless “what seems to be the plain meaning

20 of the statute ... lead[s] to absurd or impracticable consequences.” Seattle-First Nat'l Bank v.

21 Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted).

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1 The Local Rules provide for a motion, an opposition, and a reply. See E.D. Cal. R. 230(l). There is nothing in the Local

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Rules or the Federal Rules that provides the right to file a sur-reply. The court generally views motions for leave to file a

sur-reply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citation

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omitted). However, district courts have the discretion to either permit or preclude a sur-reply. See JG v. Douglas County

School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file a sur-

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reply where it did not consider new evidence in reply). Plaintiff does not have the right to file a sur-reply, and he did not

file a motion seeking leave to file a sur-reply. However, in light of Plaintiff's pro se status the Court will deny motion to

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strike. The Court has reviewed Plaintiff's sur-reply but finds that the arguments raised in the sur-reply do not change the

court's analysis of Defendant's summary judgment motion.

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1 In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005), the Ninth Circuit explained, “The

2 PLRA does not define the terms ‘frivolous,’ or ‘malicious,’ nor does it define dismissals for failure to

3 ‘state a claim upon which relief could be granted.’ We have held that the phrase ‘fails to state a claim

4 on which relief may be granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule

5 of Civil Procedure 12(b)(6).” In defining the terms frivolous and malicious, the Andrews court stated

6 that, “we look to their ‘ordinary, contemporary, common meaning.’ Thus, a case is frivolous if it is ‘of

7 little weight or importance: having no basis in law or fact.’ A case is malicious if it was filed with the

8 ‘intention or desire to harm another.’ ” Andrews, 398 F.3d at 1121 (internal quotations and citations

9 omitted).

10 The Andrews court further noted, “[n]ot all unsuccessful cases qualify as a strike under §

11 1915(g). Rather, § 1915(g) should be used to deny a prisoner's in forma pauperis status only when,

12 after careful evaluation of the order dismissing an action, and other relevant information, the district

13 court determines that the action was dismissed because it was frivolous, malicious or failed to state a

14 claim.” Id. at 1121. In making the determination whether a dismissal counts as a strike, it is the

15 substance of the dismissal which is determinative, not the styling of the dismissal. El-Shaddai v.

16 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016); O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

17 In seeking revocation of Plaintiff's in forma pauperis status, Defendants bear the burden of

18 establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which

19 requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals.

20 Andrews, 398 F.3d at 1120. “Once the defendants have met this initial burden, the burden then shifts

21 to the prisoner, who must attempt to rebut the defendants’ showing by explaining why a prior

22 dismissal should not count as a strike.” Id. “In sum, once a prisoner has been placed on notice of the

23 potential disqualification under 1915(g) by either the district court or the defendant, the prisoner bears

24 the ultimate burden of persuading the court that § 1915(g) does not preclude IFP status.” Id.

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1 III.

2 DISCUSSION

3 Plaintiff initiated this action on June 7, 2020. Defendants argue that prior to that date, the

4 following cases filed by Plaintiff were dismissed for the reasons set forth here:2 (1) Lamon v. Adams,

5 et al., Case No. 1:07-cv-01390-LJO-GBC (E.D. Cal. July 6, 2011) (dismissed with prejudice after

6 finding that the matter was barred by res judicata as duplicative of Plaintiff’s claims in the matter of

7 Lamon v. Tilton, et al., 1:07-cv-00493-AWI-DLB (E.D. Cal.); (2) Lamon v. Stockman, Case No. 1:98-

8 cv-06089-OWW-LJO (E.D. Cal. Aug. 17, 2000) (dismissed Plaintiff’s third amended complaint on

9 February 25, 2000, for failure to plead facts sufficient to state a claim upon which relief could be

10 granted. Plaintiff failed to file a fourth amended complaint, and the case was dismissed on August 17,

11 2000, for failure to prosecute); (3) Lamon v. Tilton, et al., Case No. 09-15552 (9th Cir. June 1, 2009)

12 (the Ninth Circuit found that “the questions raised in this appeal [were] so insubstantial as not to

13 require further argument.” The Court then summarily affirmed the lower court’s order denying

14 preliminary injunctive relief); and (4) Lamon v. Pliler, et al., Case No. 2:03-cv-00423-AK (E.D. Cal.

15 Jan. 5, 2007) (the district court denied Plaintiff’s motion for injunctive relief. Plaintiff filed a timely

16 notice of appeal and requested the district court certify that his appeal was not frivolous. On October

17 4, 2006, the district court certified that Plaintiff’s interlocutory appeal was not taken in good faith. On

18 January 5, 2007, the Ninth Circuit found Plaintiff failed to follow the procedural appellate process as

19 required by Federal Rule of Appellate Procedure 42-1, and dismissed the appeal for failure to pay the

20 filing fee).

21 A. Lamon v. Tilton, et al., No. 09-15552 (9th Cir. 2009)

22 In Lamon v. Tilton, et al., the Ninth Circuit found that “the questions raised in this appeal

23 [were] so insubstantial as not to require further argument.” (Citation omitted). The district court’s

24 order denying preliminary injunctive relief was summarily affirmed.

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2 The Court takes judicial notice of these cases pursuant to Federal Rule of Evidence 201(b)(2). See United States v. Black,

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482 F.3d 1035, 1041 (9th Cir. 2007); Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005); U.S.

el rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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1 It is questionable whether this case constitutes a strike under § 1915(g), and the Court declines

2 to make such finding, given the Court’s finding there are three other prior actions that qualify as

3 strikes. In Robinson v. Davey, Case No. 1:17-cv-01524-DAD-GSA, 2018 WL 11292345 (E.D. Cal.

4 Apr. 16, 2018), this Court specifically found:

5 [T]he Ninth Circuit's subsequent summary affirmance of that dismissal by the District Court,

in which the appellate court noted that “[a] review of the record and the opening brief indicates

6 that the questions raised in this appeal are so insubstantial as not to require further argument,”

see Robinson v. Davis, 2:03-cv-02085-FCD, Doc. No. 74 (E.D. Cal. Mar. 10, 2010), does not

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constitute a strike for purposes of § 1915(g). This is the established law of the Ninth Circuit.

8 See El-Shaddai v. Zamora, 833 F.3d 1036, 1045 (9th Cir. 2016) (“We hold that where an

appellate decision simply affirms the district court, and does not dismiss the appeal on a

9 statutorily enumerated ground, the appellate decision does not count as a separate strike.”). In

the appeal relied upon as a strike in the pending findings and recommendation, the Ninth

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Circuit did not dismiss the appeal on a statutorily enumerated ground, but instead affirmed the

11 District Court's decision on the merits. Numerous District Courts have also come to the same

conclusion that such summary affirmances do not count as separate strikes under § 1915(g).

12 See, e.g., Wyatt v. Sundaram, No. 1:15-cv-00895-DAD-SAB, 2017 WL 427336, at *2 (E.D.

Cal. Jan. 31. 2017); Negrete v. Lewis, No. 13–cv–05079–HSG (PR), 2015 WL 693590, at *2

13 (N.D. Cal. Feb. 18, 2015); Morris v. Green, No. 2:13–cv–0589 JAM CKD P, 2014 WL

14 4187126, at *3 (E.D. Cal. Aug. 20, 2014); Morris v. Virga, No. 2:10–cv–2069 GEB DAD P,

2013 WL 6185244, at *2 (E.D. Cal. Nov. 26, 2013); Farley v. Virga, No. 2:11–cv–1830 KJN

15 P, 2012 WL 3070632, at *1 (E.D. Cal. July 26, 2012); Thomas v. Felker, No. 2:09–cv–2486

GEB CKD P, 2012 WL 2116406, at *4 (E.D. Cal. June 11, 2012).”

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Id. at *1. Defendants do not acknowledge or address this Court’s holding in Robinson v. Davey, and

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based on the reasoning therein, the Court declines to find that this action constitutes a strike under §

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1915(g).

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B. Lamon v. Pliler, No. 2:03-cv-00423-AK (E.D. Cal.)

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In Lamon v. Pliler, No. 2:03-cv-00423-AK (E.D. Cal. 2003), the district court denied

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Plaintiff’s motion for injunctive relief. Plaintiff filed an interlocutory appeal and requested the district

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court certify that his appeal was not frivolous. The Ninth Circuit granted Plaintiff in forma pauperis

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status. On October 4, 2006, the district court certified that Plaintiff’s interlocutory appeal was not

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taken in good faith. Thereafter, on January 5, 2007, the Ninth Circuit found Plaintiff failed to follow

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the procedural appellate process as required by the Federal Rule of Appellate Procedure 42-1, and

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dismissed Plaintiff’s appeal for failure to pay the filing fee.

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1 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not

2 taken in good faith.” 28 U.S.C. § 1915(a)(3). The test for allowing an appeal in forma pauperis is

3 easily met; the good faith requirement is satisfied if the appellant seeks review of any issue that is not

4 frivolous. Gardner v. Pogue, 558 F.3d 548, 550–51 (9th Cir.1977) (citing Coppedge v. United States,

5 369 U.S. 438, 445 (1962)) (quotation marks omitted); Hooker v. American Airlines, 302 F.3d 1091,

6 1092 (9th Cir.2002).

7 If the appellate court finds that the district court erred in certifying the appeal was not taken in

8 good faith, it may set aside the certification and grant leave to proceed in forma pauperis. O'Neal v.

9 Price, 531 F.3d at 1150. Thus, in certifying that Plaintiff was not entitled to proceed in forma pauperis

10 on appeal because his appeals were not taken in good faith, the district courts necessarily found that

11 there were no non-frivolous issues. 28 U.S.C. § 1915(a)(3); Hooker, 302 F.3d at 1092; Gardner, 558

12 F.3d at 550–51. The Ninth Circuit did not disagree or set aside the certification. O'Neal v. Price, 531

13 F.3d at 1150. To the contrary, the appellate court found Plaintiff was not entitled to proceed in forma

14 pauperis on appeal and ordered Plaintiff to pay the filing fee in full. An appellate court's reliance on a

15 district court's finding that an appeal was not taken in good faith is “equivalent to a finding of

16 frivolity.” Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013). Even if the dismissal of an appeal

17 occurs later for another reason, the rejection of IFP status because an appeal is frivolous counts as a

18 dismissal and a strike for purposes of § 1915(g). Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir.

19 2015).

20 Here, the appellate court dismissed the appeal because Plaintiff did not pay the filing fee.

21 However, under Richey, this later dismissal does not preclude this case from being considered a strike.

22 Richey, 807 F.3d at 1208. Plaintiff contends that this interlocutory appeal does not constitute a strike

23 because the case proceeded to a jury trial and he subsequently filed an appeal on all grounds, citing

24 Tafari v. Hues, 473 F.3d 440 (2d Cir. 2007). An interlocutory appeal that is expressly dismissed by an

25 appellate court as frivolous may count as a strike under § 1915(g), see King v. Anderson, 234 F. App'x

26 321 (5th Cir.2007); however, the mere dismissal of an interlocutory appeal for want of jurisdiction

27 because the appeal is improvident and premature does not constitute a strike against a pro se in forma

28 pauperis litigant. Tafari v. Hues, 473 F.3d 440 (2d Cir.2007). In this instance, the interlocutory appeal

1 was expressly determined to be frivolous because it was explicitly determined the appeal was not

2 taken in good faith.3 See Knapp v. Hogan, 738 F.3d at 1110 (“dismissed appeals clearly count as

3 strikes because they relied on district court findings that the appeal ‘[was] not taken in good faith,’ and

4 lack of ‘good faith” in this context has been held to be equivalent to a finding of frivolity.”) (citations

5 and footnote omitted). Accordingly, this appeal constitutes a strike.

6 C. Lamon v. Adams, et al., No. 1:07-cv-01390-LJO-GBC (E.D. Cal)

7 In Lamon v. Adams, et al., 1:07-cv-01390-LJO-GBC, the Magistrate Judge recommended that

8 the action be dismissed with prejudice after finding the matter was barred by res judicata as

9 duplicative of Plaintiff’s claim in the matter of Lamon v. Tilton, et al., 1:07-cv-00493-AWI-DLB

10 (E.D. Cal.).

11 While a dismissal on res judicata grounds may not automatically constitute a strike, when

12 considered among other factors for dismissal, a strike may be inferred. See El-Shaddai v. Zamora, 833

13 F.3d 1036, 1043 (9th Cir. 2016) (“An alternative ground for dismissal can create a strike when it is ‘a

14 fully sufficient condition … for a dismissal with prejudice.’”) (citing O’Neal v. Price, 531 F.3d 1146,

15 1156 (9th Cir. 2008)). Several different courts, including this Court, have concluded that a dismissal

16 based on res judicata may constitute a strike under the PLRA if the prior court’s determination

17 demonstrates that res judicata was a fully sufficient condition to warrant dismissal. See, e.g., Ford v.

18 Pierce, No. 2:17-cv-01928 DB P, 2018 WL 6809563, at *3 (E.D. Cal. Dec. 27, 2018), report and

19 recommendation adopted, No. 2:17-cv-01928-JAM DB P, 2019 WL 224221 (E.D. Cal. Jan. 16, 2019);

20 Robison v. Weingart Transitional Ctr., No. 2:18-cv-07067-VAP-KES, 2018 WL 6190325, at *5-6

21 (C.D. Cal. Aug. 29, 2012), report and recommendation adopted, 2018 WL 6697176 (C. D. Cal. Dec.

22 20, 2018) (action barred by collateral estoppel and dismissed for failing to state a claim, resulted in

23 conclusion that action constituted a strike under the PLRA); Belanus v. Clark, 796 F.3d 1021, 1027

24 (9th Cir. 2015) (case barred by statute of limitations constituted a dismissal for failure to state a claim

25 and constituted a strike under the PLRA); Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir. 2001)

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3 Indeed, the Ninth Circuit denied the defendant’s motion to dismiss the appeal for lack of jurisdiction. (No. 06-16710,

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1 (two prior dismissal on res judicata grounds constituted strikes under the PLRA); Cramer v.

2 Dickinson, No. 1:08-cv-00375-AWI-GSA-PC, 2013 WL 1192402, at *1 (E.D. Cal. Mar. 21, 2013),

3 aff’d, 586 F. App’x 381 (9th Cir. 2014) (concluding dismissal with prejudice on res judicata claims

4 constituted dismissal for failure to state a claim which qualified as a strike under the PLRA).

5 Here, it is clear that the entire action in case no. 1:07-cv-01390-LJO-GBC was dismissed with

6 prejudice solely on the ground that the claim had been previously raised and was now barred by res

7 judicata. Although the Court did not cite any specific grounds under the PLRA, the Court can look to

8 the reasoning provided to infer failure to state a claim. The dismissal with prejudice in case no. 1:07-

9 cv-01390-LJO-GBC on res judicata grounds “rang the PLRA bells of frivolous, malicious, or failure to

10 state a claim.” El-Shaddai, 833 F.3d at 1042.

11 In his opposition, Plaintiff argues that Magistrate Judge Newman recently found that this case

12 did not qualify as a strike. On April 30, 2021, in the matter of Lamon v. Mey, case number 2:20-cv-

13 01474-TLN-KJN, Magistrate Judge Newman determined there was not enough information to find

14 that the dismissal in case no. 1:07-cv-01390-LJO-GBC qualified as a strike under the PLRA. (ECF

15 No. 43.) However, on June 2, 2021, Magistrate Judge Newman issued an order vacating the April 20,

16 2021 Findings and Recommendation and indicated he would reconsider the argument as to whether

17 case no. 1:07-cv-01390-LJO-GBC constituted a strike under the PLRA. (ECF No. 46.) On June 30,

18 2021, Magistrate Judge Newman issued new Findings and Recommendations finding that the

19 dismissal of case no. 1:07-cv-01390-LJO-GBC on res judicata grounds “rang the PLRA bells of

20 frivolous, malicious, or failure to state a claim.” (ECF No. 48 at 8) (citation omitted). To the extent

21 Plaintiff is seeking reconsideration of the Court’s ruling in Lamon v. Mey, case number 2:20-cv-

22 01474-TLN-KJN, Plaintiff cannot do so in this action. See Federated Dep't Stores v. Moitie, 452 U.S.

23 394, 398 (1981) (an alleged erroneous judgment must be corrected by direct review and is not subject

24 to collateral attack). In addition, there a final ruling in that case for reconsideration. Accordingly, this

25 case constitutes a strike under § 1915(g).

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1 D. Lamon v. Stockman, No. 1:98-cv-06089-OWW-LJO (E.D. Cal.)

2 In Lamon v. Stockman, No. 1:98-cv-06089-OWW-LJO, the Court dismissed Plaintiff’s third

3 amended complaint on February 25, 2000, for failure to plead facts sufficient to state a claim upon

4 which relief could be granted. Plaintiff failed to file a fourth amended complaint, and the case was

5 dismissed on August 17, 2000, for failure to prosecute.

6 In Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), the Ninth Circuit held, “when (1) a

7 district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave

8 to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike

9 under § 1915(g). Id. at 1143. The Court found, “failure to file an amended complaint did not negate

10 the determination already made by the court that the complaint he had filed, and on which he

11 effectively elected to stand, failed to state a claim. It also does not matter whether the dismissals were

12 with or without prejudice. Id. at 1142. Based on the reasoning in Harris, this case constitutes a strike.

13 E. Lamon v. Allison, No. 2:18-cv-2218 TLN CKD P

14 In addition to the above cases, the Court takes judicial notice of case no. 1:18-cv-2218,

15 which was filed in this Court by Plaintiff on August 15, 2018. On February 21, 2020, Findings and

16 Recommendations were issued recommending that the action be dismissed for Plaintiff’s failure to

17 follow court orders. (Case No. 18-2218, ECF No. 35.) It was specifically determined that Plaintiff’s

18 second amended complaint disregarded previous orders finding that Plaintiff’s early complaints did

19 not meet the short and plain requirement under Federal Rule of Civil Procedure 8. (Id., ECF No. 35 at

20 3-4.) On May 12, 2020, the Findings and Recommendations were adopted in full. (Id., ECF No. 43.)

21 Plaintiff filed a notice of appeal which is pending before the Ninth Circuit Court of Appeals. (Id.,

22 ECF No. 47.)

23 In Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013), the Ninth Circuit found that

24 “dismissals following the repeated violation of Rule 8(a)’s ‘short and plain statement’ requirement,

25 following leave to amend, are dismissals for failure to state a claim under § 1915(g)[ ].” 738 F.3d at

26 1110 (emphasis in original). As in Knapp, the Court dismissed case No. 2:18-cv-2218, following

27 Plaintiff's repeated violation of Rule 8(a)’s “short and plain statement” requirement. Thus, case No.

28 2:18-cv-2218 is a strike pursuant to § 1915(g). The fact that Plaintiff’s appeal of such ruling is

1 pending does not change this finding. See Coleman v. Tollefson, 575 U.S. 532, 537 (20150 (“A prior

2 dismissal on a statutorily enumerated ground [in 28 U.S.C. § 1915(g)] counts as a strike even if the

3 dismissal is the subject of an appeal.”); see also Kanin v. Mey, No. 1:20-cv-01474-TLN-KLN (E.C.

4 Cal. June 30, 2021) (finding case no. 2:18-cv-2218 TLN CKD P constitutes a strike under § 1915(g),

5 ECF No. 48.

6 Based on the foregoing, the Court finds that Plaintiff has incurred three or more strikes under §

7 1915(g) prior to filing the instant action. Consequently, Plaintiff's in forma pauperis status must be

8 revoked unless Plaintiff was in “imminent danger of serious physical injury[.]” 28 U.S.C. § 1915(g).

9 F. Imminent Danger

10 The imminent danger exception to the three-strikes rule of § 1915(g) applies if the complaint

11 makes a plausible allegation that the prisoner faced “imminent danger of serious physical injury” at

12 the time of filing. Andrews, 493 F.3d at 1053. Conditions which posed imminent danger to Plaintiff at

13 some earlier time are immaterial, as are any subsequent conditions. Id. at 1053. While the injury is

14 merely procedural rather than a merits-based review of the claims, the allegations of imminent danger

15 must still be plausible. Id. at 1055. Thus, the availability of this “imminent danger” exception “turns

16 on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later

17 time.” Andrews, 493 F.3d at 1053. The imminent danger exception is available “for genuine

18 emergencies,” where “time is pressing” and “a threat ... is real and proximate.” Lewis v. Sullivan, 279

19 F.3d 526, 531 (7th Cir. 2002). “[V]ague and utterly conclusory assertions” of harm are insufficient.

20 White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). “Imminent danger of serious physical

21 injury must be a real, present threat, not merely speculative or hypothetical.” Blackman v. Mjening,

22 No. 1:16-cv-01421-LJO-GSA PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his

23 burden under § 1915(g), a plaintiff must provide “specific fact allegations of ongoing serious physical

24 injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.”

25 Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

26 The Court has reviewed the allegations made in Plaintiff's complaint and finds that he does not

27 meet the imminent danger exception. In screening Plaintiff’s complaint, the Court found that

28 Plaintiff’s allegations, liberally construed, stated the following retaliation claims: (1) housing Plaintiff

1 with inmate Romero against Defendants Jones, Moffett, Moore, Alvarez, Eaker, Gonzalez, Rivera-

2 Sierra, Ronquillo, Luna, and Ramirez because he filed complaints and/or inmate grievances; (2)

3 destruction of Plaintiff’s property on May 17, 2016, because he filed complaints and/or grievances

4 against Defendants Eaker, Moffett, Moore, Ramirez, and Goss; (3) issuance of a false RVR against

5 Defendants Bennett-Beach, Velasco and Goss because Plaintiff exercised his rights under the First

6 Amendment; and (4) destruction of personal property on October 31, 2016 because he exercised his

7 rights under the First Amendment against Defendants Alvarez, Gonzalez, Jones, Luna, Moffett,

8 Moore, Rivera-Sierra and Ronquillo. All of these alleged actions took place long before Plaintiff filed

9 this matter on June 25, 2020, thus Plaintiff was not in imminent danger at the time he filed suit based

10 on his First Amendment retaliation claims.

11 The Court also found that Plaintiff stated “a cognizable failure to protect claim against

12 Defendants Corona, Loera, Ramirez, Eaker and Luna for disclosing the contents of Plaintiff’ inmate

13 grievances to inmate-porters, resulting in Plaintiff being labeled a ‘snitch.’ Plaintiff also states a

14 cognizable failure to protect claim against Defendants Jones, Moffett, Moore, Alvarez, Ronquillo,

15 Luna, Rivera-Sierra and Clare for housing him with inmate Romero who attacked Plaintiff.” These

16 claims are also occurred at some earlier time, and do not demonstrate that Plaintiff was in imminent

17 danger at the time he filed the initial complaint. See Andrews, 493 F.3d at 1055 (“Instead, the

18 exception applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent

19 danger of serious physical injury’ at the time of filing.”); see also Medberry v. Butler, 185 F.3d 1189,

20 1193 (11th Cir.1999) (finding failure to protect allegations against prison officials who put an inmate

21 convicted of sexual battery in general population failed to meet imminent danger standard because the

22 threat had ceased prior to filing the complaint and there were no allegations that plaintiff was in

23 imminent danger of serious physical injury at the time he filed his complaint or that he was in jeopardy

24 of any ongoing danger); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998) (“Allegations that the

25 prisoner faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and

26 authorize the prisoner to pay the filing fee on the installment plan.”); Ciarpaglini v. Saini, 352 F.3d

27 328, 330 (7th Cir. 2003) (“Allegations of past harm do not suffice; the harm must be imminent or

28 occurring at the time the complaint is filed.”); cf. Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 n.1

1 (3d Cir. 2001) (while declining to reach question of whether “imminent danger” encompasses an

2 ongoing danger of serious physical injury, noting that the plaintiff's allegations of past acts of physical

3 harassment were not sufficiently specific or related to support an inference of an ongoing danger).

4 Plaintiff's assertions that he was retaliated and subjected to assault in 2006 are insufficient, without

5 more, to show an ongoing pattern of behavior by other inmates or by any of the named Defendants

6 that Plaintiff alleges placed him in imminent danger of serious physical injury.

7 Lastly, the Court found that Plaintiff stated cognizable state law claims for violation of the

8 Bane Act, codified at California Civil Code § 52.1, and for intentional infliction of emotional distress.

9 These claims, even liberally construed, do not demonstrate that Plaintiff was in imminent danger when

10 he filed the initial complaint on June 25, 2020.

11 Therefore, based on the allegations of Plaintiff’s complaint, the Court finds it is not plausible

12 that he faced an imminent danger of serious physical injury at the time he filed this action and Plaintiff

13 does not assert otherwise. Consequently, Plaintiff's in forma pauperis status must be revoked and

14 Plaintiff should be required to pre-pay the $400.00 filing fee in order to proceed with the instant

15 action.

16 IV.

17 CONCLUSION AND RECOMMENDATIONS

18 Based on the foregoing, it is HEREBY RECOMMENDED that:

19 1. Defendants’ motion for an order revoking Plaintiff's in forma pauperis status, (ECF No.

20 39), be GRANTED; and

21 2. Plaintiff be required to pay the $400.00 filing fee in full for this action, within thirty

22 (30) days from the service of the District Judge's order adopting these findings and

23 recommendations.

24 These Findings and Recommendations will be submitted to the United States District Judge

25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days

26 after being served with these Findings and Recommendations, the parties may file written objections

27 with the court. The document should be captioned “Objections to Magistrate Judge's Findings and

28 Recommendations.” The parties are advised that failure to file objections within the specified time

1 || may result in the waiver of the “right to challenge the magistrate's factual findings” on appeal.

2 || Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

3 || 1394 (th Cir. 1991) ).

4

5 IT IS SO ORDERED.

ot fe

6 ll Dated: _ August 13, 2021 OF

7 UNITED STATES MAGISTRATE JUDGE

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