1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARONTA T. LEWIS, Case No. 24-cv-09351-AMO (PR)
8 Plaintiff, ORDER FINDING PLAINTIFF MEETS IMMINENT DANGER EXECEPTION UNDER 9 v. 28 U.S.C. § 1915(G); GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINT; AND 10 R. PUENTE, et al., GRANTING IN FORMA PAUPERIS STATUS Defendants. Re: Dkt. Nos. 10, 12, 13 11
12 Plaintiff Daronta T. Lewis, a self-represented state prisoner currently incarcerated at 13 Salinas Valley State Prison (“SVSP”), filed a civil rights complaint under 42 U.S.C. § 1983, in 14 which he seeks damages for alleged civil rights violations stemming from his incarceration at 15 SVSP. Dkt. 1. Along with his complaint, Lewis filed an initial request for leave to proceed in 16 forma pauperis (“IFP”). Dkt. 2. 17 On September 25, 2025, in its Order to Show Cause, the Court found Lewis had on 3 or 18 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 19 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 20 fails to state a claim upon which relief may be granted, and further found Lewis was not under 21 imminent danger of serious physical injury. See Dkt. 9 at 2-5 (citing 28 U.S.C. § 1915(g)). 22 Consequently, the Court denied his IFP application and ordered Lewis to either pay the full filing 23 fee or show cause why the action should not be dismissed pursuant to section 1915 (g). See Dkt. 9 24 at 5 (citing Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005)). Andrews implicitly allows 25 the Court to raise the section 1915(g) problem on its own, but requires the Court to notify the 26 prisoner of the earlier dismissals it considers to presently support a section 1915(g) dismissal and 27 allow the prisoner an opportunity to be heard on the matter before dismissing the current action. 1 On October 2, 2025, Lewis filed his response to the Order to Show Cause, in which he 2 contests the Court’s finding that he is not under imminent danger of serious physical injury within 3 the meaning of section 1915(g). Dkt. 10. Lewis has also filed a motion for leave to file a 4 supplemental complaint and a new IFP application. Dkts. 12, 13. 5 I. IMMINENT DANGER EXCEPTION UNDER SECTION 1915(G) 6 The plain language of the imminent danger clause in section 1915(g) indicates that 7 “imminent danger” is to be assessed at the time of filing, not at the time of the alleged 8 constitutional violations. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en 9 banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 10 715, 717 (8th Cir. 1998). “Imminent danger” may include an ongoing danger of serious physical 11 injury. See Ashley, 147 F.3d at 717 (holding that plaintiff sufficiently alleged ongoing danger 12 where he had repeatedly been housed near enemies, despite his protests, and where he filed his 13 complaint very shortly after being attacked by an enemy); cf. Abdul-Akbar, 239 F.3d at 315 n.1 14 (declining to reach question of whether “imminent danger” encompasses ongoing danger of 15 serious physical injury, and noting that plaintiff’s allegations of past acts of physical harassment 16 were not sufficiently specific or related to support inference of ongoing danger); Medberry, 185 17 F.3d at 1193 (finding no ongoing danger where plaintiff had been placed in administrative 18 segregation following physical assaults by fellow inmates and before he filed his complaint). 19 A district court should liberally construe the allegations in a complaint filed by a self- 20 represented prisoner facing a section 1915(g) bar, construing all allegations in favor of the 21 complainant and crediting those allegations of “imminent danger” that have gone unchallenged. 22 See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir 2002) (liberally construing allegations in 23 complaint for initial determination of whether prisoner is in “imminent danger of serious physical 24 injury”); Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998) (same). The plaintiff has the burden of 25 proving that he was in imminent danger of serious physical injury at the time he filed the instant 26 action. 27 Here, the Court notes that in Lewis’s sixteen-page, single-spaced handwritten response, he 1 U.S.C. § 1915(g) (providing for “imminent danger” exception), insofar as he alleges that he 2 suffered “imminent danger” at the time of filing his complaint on December 23, 2024, and that his 3 “imminent danger status has not changed but [has] gotten worse . . . .” Dkt. 10 at 2. Based on 4 such a response, the Court finds that Lewis has shown that he was in imminent danger of serious 5 physical injury or subject to an “ongoing danger” at the time he filed his complaint. See Abdul- 6 Akbar, 239 F.3d at 312. Consequently, the Court finds that Lewis has shown cause why this case 7 should not be dismissed pursuant to a section 1915(g) bar and IFP should not be denied. 8 In sum, Lewis was given the opportunity to be heard on the question of whether the instant 9 action is subject to dismissal under section 1915(g), see Andrews, 398 F.3d at 1120-21, and his 10 response to the Court’s Order to Show Cause, liberally construed, establishes that he has 11 satisfactorily alleged that he is entitled to the imminent danger exception under section 1915(g). 12 Accordingly, the Court will consider his IFP application below because it finds that IFP should not 13 be denied under section 1915(g). The Court’s findings above do not preclude any served 14 defendants from later challenging Lewis’s imminent danger allegations, if they wish to pursue 15 such a challenge. See Gibbs v. Cross, 160 F.3d 962, 967 n.8 (3d Cir. 1998) (finding that district 16 court’s determination that plaintiff alleged satisfactorily that he is entitled to imminent danger 17 exception does not preclude defendants from later challenging plaintiff’s imminent danger 18 allegations at summary judgment stage). 19 II. MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT 20 Also before the Court is Lewis’s motion for leave to file a supplemental complaint, and his 21 proposed 60-page supplemental complaint. See Dkts. 12, 12-1. 22 Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should 23 be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Four factors are commonly 24 used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, 25 prejudice to the opposing party, and futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070, 26 1079 (9th Cir. 2007) (citations and internal quotation marks omitted).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARONTA T. LEWIS, Case No. 24-cv-09351-AMO (PR)
8 Plaintiff, ORDER FINDING PLAINTIFF MEETS IMMINENT DANGER EXECEPTION UNDER 9 v. 28 U.S.C. § 1915(G); GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINT; AND 10 R. PUENTE, et al., GRANTING IN FORMA PAUPERIS STATUS Defendants. Re: Dkt. Nos. 10, 12, 13 11
12 Plaintiff Daronta T. Lewis, a self-represented state prisoner currently incarcerated at 13 Salinas Valley State Prison (“SVSP”), filed a civil rights complaint under 42 U.S.C. § 1983, in 14 which he seeks damages for alleged civil rights violations stemming from his incarceration at 15 SVSP. Dkt. 1. Along with his complaint, Lewis filed an initial request for leave to proceed in 16 forma pauperis (“IFP”). Dkt. 2. 17 On September 25, 2025, in its Order to Show Cause, the Court found Lewis had on 3 or 18 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 19 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 20 fails to state a claim upon which relief may be granted, and further found Lewis was not under 21 imminent danger of serious physical injury. See Dkt. 9 at 2-5 (citing 28 U.S.C. § 1915(g)). 22 Consequently, the Court denied his IFP application and ordered Lewis to either pay the full filing 23 fee or show cause why the action should not be dismissed pursuant to section 1915 (g). See Dkt. 9 24 at 5 (citing Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005)). Andrews implicitly allows 25 the Court to raise the section 1915(g) problem on its own, but requires the Court to notify the 26 prisoner of the earlier dismissals it considers to presently support a section 1915(g) dismissal and 27 allow the prisoner an opportunity to be heard on the matter before dismissing the current action. 1 On October 2, 2025, Lewis filed his response to the Order to Show Cause, in which he 2 contests the Court’s finding that he is not under imminent danger of serious physical injury within 3 the meaning of section 1915(g). Dkt. 10. Lewis has also filed a motion for leave to file a 4 supplemental complaint and a new IFP application. Dkts. 12, 13. 5 I. IMMINENT DANGER EXCEPTION UNDER SECTION 1915(G) 6 The plain language of the imminent danger clause in section 1915(g) indicates that 7 “imminent danger” is to be assessed at the time of filing, not at the time of the alleged 8 constitutional violations. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en 9 banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 10 715, 717 (8th Cir. 1998). “Imminent danger” may include an ongoing danger of serious physical 11 injury. See Ashley, 147 F.3d at 717 (holding that plaintiff sufficiently alleged ongoing danger 12 where he had repeatedly been housed near enemies, despite his protests, and where he filed his 13 complaint very shortly after being attacked by an enemy); cf. Abdul-Akbar, 239 F.3d at 315 n.1 14 (declining to reach question of whether “imminent danger” encompasses ongoing danger of 15 serious physical injury, and noting that plaintiff’s allegations of past acts of physical harassment 16 were not sufficiently specific or related to support inference of ongoing danger); Medberry, 185 17 F.3d at 1193 (finding no ongoing danger where plaintiff had been placed in administrative 18 segregation following physical assaults by fellow inmates and before he filed his complaint). 19 A district court should liberally construe the allegations in a complaint filed by a self- 20 represented prisoner facing a section 1915(g) bar, construing all allegations in favor of the 21 complainant and crediting those allegations of “imminent danger” that have gone unchallenged. 22 See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir 2002) (liberally construing allegations in 23 complaint for initial determination of whether prisoner is in “imminent danger of serious physical 24 injury”); Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998) (same). The plaintiff has the burden of 25 proving that he was in imminent danger of serious physical injury at the time he filed the instant 26 action. 27 Here, the Court notes that in Lewis’s sixteen-page, single-spaced handwritten response, he 1 U.S.C. § 1915(g) (providing for “imminent danger” exception), insofar as he alleges that he 2 suffered “imminent danger” at the time of filing his complaint on December 23, 2024, and that his 3 “imminent danger status has not changed but [has] gotten worse . . . .” Dkt. 10 at 2. Based on 4 such a response, the Court finds that Lewis has shown that he was in imminent danger of serious 5 physical injury or subject to an “ongoing danger” at the time he filed his complaint. See Abdul- 6 Akbar, 239 F.3d at 312. Consequently, the Court finds that Lewis has shown cause why this case 7 should not be dismissed pursuant to a section 1915(g) bar and IFP should not be denied. 8 In sum, Lewis was given the opportunity to be heard on the question of whether the instant 9 action is subject to dismissal under section 1915(g), see Andrews, 398 F.3d at 1120-21, and his 10 response to the Court’s Order to Show Cause, liberally construed, establishes that he has 11 satisfactorily alleged that he is entitled to the imminent danger exception under section 1915(g). 12 Accordingly, the Court will consider his IFP application below because it finds that IFP should not 13 be denied under section 1915(g). The Court’s findings above do not preclude any served 14 defendants from later challenging Lewis’s imminent danger allegations, if they wish to pursue 15 such a challenge. See Gibbs v. Cross, 160 F.3d 962, 967 n.8 (3d Cir. 1998) (finding that district 16 court’s determination that plaintiff alleged satisfactorily that he is entitled to imminent danger 17 exception does not preclude defendants from later challenging plaintiff’s imminent danger 18 allegations at summary judgment stage). 19 II. MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT 20 Also before the Court is Lewis’s motion for leave to file a supplemental complaint, and his 21 proposed 60-page supplemental complaint. See Dkts. 12, 12-1. 22 Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should 23 be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Four factors are commonly 24 used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, 25 prejudice to the opposing party, and futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070, 26 1079 (9th Cir. 2007) (citations and internal quotation marks omitted). The decision to grant or 27 deny a request for leave to amend rests in the discretion of the trial court. See California v. Neville 1 Here, the pertinent facts persuade the Court to grant Lewis’s request for leave to file a 2 supplemental complaint. Defendants in this action have not yet been served. Thus, Lewis may as 3 a matter of course amend his complaint because a responsive pleading has not yet been served. 4 See Fed. R. Civ. P. 15(a). Accordingly, Lewis’s motion for leave to file a supplemental complaint 5 is GRANTED. Dkt. 12. 6 III. IFP APPLICATION 7 Having found that Lewis has satisfactorily alleged that he qualifies for the imminent 8 danger exception under section 1915(g), the Court next considers his IFP application. 9 Lewis’s motion for leave to proceed IFP is GRANTED. Dkt. 13. The total filing fee due 10 is $350.00. The initial partial filing fee due for Lewis at this time is $8.10. 11 IV. CONCLUSION 12 For the reasons outlined above, the Court orders as follows: 13 1. Lewis’s response to the Court’s Order to Show Cause (dkt. 10), liberally construed, 14 establishes that he has alleged satisfactorily that he is entitled to the imminent danger exception 15 under section 1915(g). 16 2. Lewis’s motion for leave to file a supplemental complaint is GRANTED. Dkt. 12. 17 The Clerk of the Court shall file the proposed supplemental complaint (see dkt. 12-1) and mark it 18 as “SUPPLEMENTAL COMPLAINT.” The Court will review Lewis’s initial and supplemental 19 complaints in a separate written Order. 20 3. Lewis’s motion for leave to proceed IFP is GRANTED. Dkt. 13. A copy of this 21 Order and the attached instruction sheet will be sent to Lewis, the Prison Trust Account Office 22 and the Court’s Financial Office. 23 4. It is the plaintiff’s responsibility to prosecute this case. The plaintiff must keep the 24 Court informed of any change of address and must comply with the Court’s orders in a timely 25 fashion. Pursuant to Northern District Local Rule 3-11, a self-represented party proceeding 26 whose address changes while an action is pending must file a notice of change of address 27 promptly specifying the new address. See L.R. 3-11(a). The Court may dismiss without ] of this return a written communication from the self-represented party indicating a current 2 address. See L.R. 3-11(b). 3 IT IS SO ORDERED. 4 || Dated: 5/29/2026 5 6 ( Lacob Ted RACELI MARTINEZ-OLGUIN 7 United States District Judge 8 9 10 1] a 12
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1 UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA
3 INSTRUCTIONS FOR PAYMENT OF PRISONER’S FILING FEE 4 5 The prisoner shown as the plaintiff or petitioner on the attached order has filed a civil action in 6 forma pauperis in this court and owes to the court a filing fee. Pursuant to 28 U.S.C. § 1915, the 7 fee is to be paid as follows:
8 The initial partial filing fee listed on the attached order should be deducted by the prison trust account office from the prisoner’s trust 9 account and forwarded to the clerk of the court as the first installment payment on the filing fee. This amount is twenty percent of the 10 greater of (a) the average monthly deposits to the prisoner’s account for the 6-month period immediately preceding the filing of the 11 complaint/petition or (b) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the 12 filing of the complaint/petition.
13 Thereafter, on a monthly basis, 20 percent of the preceding month’s income credited to the prisoner’s trust account should be deducted 14 and forwarded to the court each time the amount in the account exceeds ten dollars ($10.00). The prison trust account office should 15 continue to do this until the filing fee has been paid in full.
16 If the prisoner does not have sufficient funds in his/her account to pay the initial partial filing fee, the prison trust account office should forward the available funds, and carry the balance forward 17 each month until the amount is fully paid.
18 If the prisoner has filed more than one complaint, (s)he is required to pay a filing fee for each case. 19 The trust account office should make the monthly calculations and payments for each case in which it receives an order granting in forma pauperis and these instructions. 20 The prisoner’s name and case number must be noted on each remittance. The initial partial 21 filing fee is due within thirty days of the date of the attached order. Checks should be made 22 payable to Clerk, U.S. District Court and sent to Prisoner Accounts Receivable, U.S. District Court, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102. 23 cc: Plaintiff/Petitioner 24 Finance Office 25 26 27