(PC) Williams v. Peterson

Opinion

LANCE WILLIAMS, ) Case No.: 1:22-cv-0019 JLT EPG (PC) ) Plaintiff, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS REQUIRING PLAINTIFF v. ) TO PAY FILING FEE IN FULL WITHIN THIRTY ) DAYS A. PETERSON, et al., ) ) (Docs. 8, 12) Defendant. ) ) )

The assigned magistrate judge found Plaintiff is subject to the three strikes bar under 28 U.S.C. § 1915(g). (Doc. 8 at 2-3.) The magistrate judge also found the allegations in Plaintiff’s complaint do not satisfy the “imminent danger of serious physical injury” exception to Section 1915(g). (Id. at 3-5.) The magistrate judge noted Plaintiff alleges “lack of medical care, retaliatory false Rules Violation Reports, sexual assault, failure to protect, and the conditions of confinement he was subjected to at Corcoran State Prison.” (Id. at 4.) However, the magistrate judge observed that “before filing this case, Plaintiff was transferred to Folsom State Prison,” and the identified defendants were “are no longer responsible for Plaintiff’s health or safety.” (Id.) The magistrate judge found that “even liberally construing Plaintiff’s complaint, Plaintiff has not sufficiently alleged that he was in imminent danger of serious physical injury at the time he filed his complaint. And, even if he did, his complaint does not reveal a nexus between the imminent danger and the claims it asserts.” (Id. at 5.) Therefore, the magistrate judge recommended Plaintiff be directed to pay the filing fee in full to proceed with this action. (Id.) In his objections, Plaintiff asserts the “complaint was complete” before his transfer from Corcoran State Prison, and he attempted to file it with a certificate of service dated September 30, 2021. (See Doc. 13 at 2.) Contrary to this assertion, the complaint filed by Plaintiff in this action was dated November 15, 2021. (Doc. 1 at 27.) The complaint also includes allegations of events “since his arrival at the new facility.” (See id. at 24.) Thus, is clear the complaint was filed after Plaintiff’s transfer from Corcoran, where each of the identified defendants worked, and there are no allegations supporting a conclusion that Plaintiff was in imminent danger because of the defendants at the time the action was filed. According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the magistrate judge’s Findings and Recommendations are supported by the record and by proper analysis. As the Ninth Circuit recently explained, “in order to qualify for the § 1951(g) imminent danger exception, a three-strikes prisoner must allege imminent danger of serious physical injury that is both fairly traceable to unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara, 2022 U.S. App. LEXIS 9615 at *19, 2022 WL 1073607, at *10 (9th Cir. April 11, 2022). Plaintiff failed to carry this burden. Thus, the Court ORDERS: 1. The Findings and Recommendations issued on January 6, 2022 (Doc. 8) are 2. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not permitted proceed in forma pauperis in this action. 3. Plaintiff’s application to proceed in forma pauperis (Doc. 12) is DENIED. 4. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full the $402.00 filing fee if he wishes to proceed with his action. /// /// /// /// 5. Plaintiff is advised that failure to pay the required filing fee as ordered will result in th dismissal of this action without prejudice. Dated: _ April 21, 2022 Cerin | Tower TED STATES DISTRICT JUDGE