Johnson v. Rosalez

Opinion

1 2 3 6 7 PAUL DAVID JOHNSON, Case No. 22-cv-04091-JSW

8 Plaintiff, ORDER GRANTING MOTION TO REVOKE LEAVE TO PROCEED IN 9 v. FORMA PAUPERIS; DENYING MOTION FOR SUMMARY 10 A. CUEVAS, et al., JUDGMENT 11 Defendants. Re: Dkt. No. 20

12 Plaintiff, an inmate at Salinas Valley State Prison, filed this civil rights case under 42 13 U.S.C. § 1983. He was granted leave to proceed in forma pauperis (“IFP”). Plaintiff claims that 14 Defendants retaliated against him for his prior lawsuits. Plaintiff filed an opposition and a motion 15 for summary judgment. 16 The Prison Litigation Reform Act of 1995 ("PLRA") provides that a prisoner may not 17 bring a civil action or appeal a civil judgment under 28 U.S.C. 1915 "if the prisoner has, 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, unless the prisoner is under imminent 21 danger of serious physical injury." 28 U.S.C. § 1915(g). A prisoner must be given notice of the 22 potential applicability of Section 1915(g), by either the district court or the defendants, but the 23 prisoner bears the ultimate burden of persuasion that Section 1915(g) does not bar pauper status 24 for him. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 25 It is undisputed that Plaintiff has had three or more cases or appeals that qualify as 26 dismissals under Section 1915(g), i.e. “strikes.” See Johnson v. Davis, Case No. 21-15093 (9th 27 Cir., Sept. 17, 2021); Johnson v. Agpoon, Case No. 21-15606 (9th Cir., Sept. 16, 2021) (appeal 1 2021) (dismissed for failure to state a claim upon which relief may be granted); Johnson v. Davis, 2 |} Case No. 20-cv-02851-LHK (N.D. Cal., Jan. 4, 2021) (dismissed for failure to state a claim upon 3 || which relief may be granted); Johnson v. California Prison Industry Authority, Case No. CIV S- 4 11-0164 CKD P (E.D. Cal., Dec. 21, 2011) (dismissed for failure to file amended complaint after 5 dismissal for failure to state a upon which relief may be granted); Johnson v. Sisto, Case No. 08- 6 || cv-01962-RRC (E.D. Cal., July 26, 2010) (dismissed for failure to state a claim upon which relief 7 || may be granted). 8 As Plaintiff has at least three strikes, he may not proceed in forma pauperis unless he was 9 || in any imminent danger of serious physical injury when he filed this case. The plain language of 10 || the imminent danger clause in Section 1915(g) indicates that "imminent danger" is to be assessed 11 at the time the prisoner filed his case. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 12 || Plaintiff has not set forth any allegations showing that he was in imminent danger of serious 13 || physical injury when he filed this case in July 2022. He does not allege any serious illness or 14 || imminent physical threat to him. He claims that Cuevas sexually harassed him during a clothed 3 || body search, but this claim concerns a single incident in December 2021, seven months before he 16 || filed his complaint. Plaintiff alleges no facts that plausibly indicate he was subject to ongoing i 17 || sexual harassment or threat of such, or any other physical endangerment, in July 2022. Z 18 || Accordingly, the imminent danger exception does not apply. 19 Defendants’ motion to revoke permission to proceed in forma pauperis is GRANTED. 20 || Within 28 days of the date this order is filed, plaintiff must pay the full $350.00 filing fee; failure 21 to do so will result in the dismissal of this case without prejudice to Plaintiff bringing his 22 || claims in a new civil rights case in which he pays the filing fee. 23 Plaintiff's motion for summary judgment is DENIED as premature. He may re-file, or file 24 || notice that he wishes to revive, his motion after he has paid the filing fee. 26 || Dated: January 12, 2023 ) 27 XN [LP fos 4 WW □□□ / JEFFREY SWHITE 28 ; Pe Statés District Judge