1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN W. WILLIAMS, No. 1:20-cv-00287-DAD-EPG (PC) 12 Plaintiffs, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS AND ORDERING

13 v. PLAINTIFF TO PAY THE REQUIRED

FILING FEE IN ORDER TO PROCEED

14 M. SAMBOA, et al., WITH THIS ACTION 15 Defendants. (Doc. Nos. 2, 5) 16 17 18 Plaintiff John W. Williams is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 5, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be denied and 23 that he be ordered to pay the required filing fee in full. (Doc. No. 5.) The magistrate judge 24 concluded that because plaintiff has accumulated at least three prior “strikes” under the Prison 25 Litigation Reform Act (PLRA”) and had not shown that he was in imminent danger of serious 26 physical injury at the time he filed his complaint, he was not eligible to proceed in forma 27 pauperis. (Id. at 2–4.) The findings and recommendations were served on plaintiff and contained 28 ///// 1 notice that any objections thereto were to be filed within twenty-one (21) days of service. (Id. at 2 4.) On March 18, 2020, plaintiff filed timely objections. (Doc. No. 6.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 4 court has conducted a de novo review of the case. Having carefully reviewed the entire file, 5 including plaintiff’s objections, the court concludes that the findings and recommendations are 6 supported by the record and proper analysis. 7 In his objections, plaintiff contends that he qualifies for the imminent danger exception to 8 the three-strikes rule. “Prisoners qualify for the exception based on the alleged conditions at the 9 time the complaint was filed,” and “the exception applies if the danger existed at the time the 10 prisoner filed the complaint.” Andrews v. Cervantes, 493 F.3d 1047, 1052–53 (9th Cir. 2007). 11 Because plaintiff is proceeding pro se, this court “must liberally construe his allegations.” Id. at 12 1055. Finally, “§ 1915(g) concerns only a threshold procedural question—whether the filing fee 13 must be paid upfront or later. Separate PLRA provisions are directed at screening out meritless 14 suits early on.” Id. Thus, “the exception applies if the complaint makes a plausible allegation 15 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing,” and “a 16 prisoner who alleges that prison officials continue with a practice that has injured him or others 17 similarly situated in the past will satisfy the ‘ongoing danger’ standard and meet the imminence 18 prong of the three-strikes exception.” Id. at 1055–57. 19 Plaintiff’s complaint in this action was filed on February 10, 2020. (See Doc. No. 1 at 20 19.) On the first page of his complaint, plaintiff anticipatorily asserted that he is “under Imminent 21 Danger pursuant to Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007),” but provided no 22 facts substantiating that claim. (Doc. No. 1 at 1.) In finding that plaintiff did not qualify for the 23 imminent danger exception to § 1915(g), the magistrate judge noted that “nothing in [the] 24 complaint suggests that Plaintiff was in imminent danger or serious physical injury at the time he 25 file the action” because “months passed from the date Plaintiff was [allegedly] assaulted” by 26 prison officials on August 4, 2019 “and no further incidents [of alleged assaults] occurred.” 27 (Doc. No. 5 at 4) (emphasis added). In his objections to the pending findings and 28 recommendations, plaintiff realleges the facts relating to the alleged August 4, 2019 assault he 1 suffered at the hands of prison officials and argues that “the beating and threats from the initial 2 8/14/19 incident were real and created a serious threat of ongoing physical harm.” (Doc. No. 6 at 3 4–5.) Moreover, plaintiff notes that he has a tendency to cut himself and that “the fear, anger, 4 anxiety, etc., etc., as a direct result of the [August 4, 2019 incident] . . . did cause urge to cut in 5 self injurious behavior while at CSP from 1.24.20 , thru 2.24.20 for relief and to cope with 6 stress.” (Id. at 5; see also Doc. No. 1 at 6.) However, neither of plaintiff’s objections 7 meaningfully disputes the magistrate judge’s finding that he does not qualify for the imminent 8 danger exception under § 1915(g). 9 With respect to plaintiff’s first argument, the fact that he was physically assaulted on 10 August 14, 2019 by itself does not plausibly allege that he was in imminent danger at the time 11 that he filed his complaint approximately six months later. A plaintiff must allege facts 12 demonstrating that he was in imminent danger at the time he filed his complaint to qualify for the 13 exception. With respect to plaintiff’s argument that he cuts himself to deal with stress and that 14 the August 12, 2019 incident caused him to cut himself on an ongoing basis, the undersigned 15 finds that plaintiff’s complaint does not plausibly allege a link between the August 14, 2019 16 incident and his allegations of cutting himself thereafter. First, while the complaint alleges that 17 plaintiff cuts himself to relieve stress, it does not allege that he cut himself to relieve any stress he 18 experienced as a result of the August 14, 2019 incident. Second, even looking to the additional 19 allegations that plaintiff provides in his objections to the pending findings and recommendations, 20 plaintiff has failed to connect the August 14, 2019 incident to him allegedly cutting himself in the 21 following months. In a different action involving plaintiff, the undersigned found that plaintiff 22 was in imminent danger at the time he filed his complaint in that action because he alleged that 23 “that correctional officers—despite knowing that he has a tendency to harm himself and requires 24 medication to alleviate such urges—deprived him of his medications, mocked his desire to harm 25 himself, threatened him with retaliatory action, and suggested that he could have access to food 26 and his medications if he withdrew his inmate grievance against them. Moreover, plaintiff 27 alleged that he did in fact cut himself in coping with these incidents.” Williams v. Pilkerten, 1:19- 28 cv-00151-DAD-SAB (PC), (Doc. No. 7 at 6) (E.D. Cal. May 13, 2019). Unlike that case, here, 1 | neither plaintiff's complaint nor his objections to the pending findings and recommendations 2 | contain any allegations from which this court can connect the alleged events of August 14, 2019 3 | to plaintiff allegedly cutting himself. See Pauline v. Mishner, No. CIV 09-00182 JMS/KSC, 4 | 2009 WL 1505672, at *2 (D. Haw. May 28, 2009) (recognizing that, when properly alleged, a 5 | suicidal prisoner could establish imminent danger of serious physical injury from his own suicidal 6 | impulses). 7 Accordingly: 8 1. The March 5, 2020 findings and recommendations (Doc. No. 5) are adopted in full; 9 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is denied; and 10 3. Plaintiff is ordered to pay the filing fee within forty-five (45) days of service of this 11 order or face dismissal of this case for failure to prosecute and failure to obey a court 12 order. 13 | IT IS SO ORDERED. si □ Dated: _ April 14, 2020 J al, Al i 7 a 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28