DEBORAH BARNES, Magistrate Judge.
Plaintiff is a former state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and was granted leave to proceed in forma pauperis or IFP pursuant to 28 U.S.C. § 1915 on August 18, 2014. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). The court proceeds on plaintiff's first amended complaint. (ECF No. 16.)
Defendants filed a motion to vacate the court's order granting IFP status on April 6, 2016. (ECF No. 38.) Additionally, plaintiff filed a motion for leave to file a second amended complaint (ECF No. 37), two motions for injunctive relief (ECF Nos. 40; 42), and a motion for a special hearing (ECF No. 49). For the reasons set forth below, the undersigned grants defendants' motion to revoke IFP, denies plaintiff's motion to file a second amended complaint without prejudice, denies plaintiff's motions for injunctive relief, and denies plaintiff's motion for a hearing.
Review of court records reveals that on at least three occasions lawsuits filed by the plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted.
Title 28 U.S.C. § 1915(g) is part of the Prison Litigation Reform Act ("PLRA"). The PLRA was intended to eliminate frivolous lawsuits, and its main purpose was to address the overwhelming number of prisoner lawsuits.
Section 1915(g) provides:
The plain language of the statute makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has previously brought three frivolous actions or appeals (or any combination thereof totaling three).
This "three strikes rule" was part of "a variety of reforms designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good."
Defendants have the burden to "produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions that were dismissed because they were `frivolous, malicious or fail[ed] to state a claim.'"
Plaintiff does not contest that the cases listed above constitute his "three strikes." (ECF No. 44.) Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff has not alleged sufficient facts that he is under imminent danger of serious physical injury. Plaintiff's imminent danger claims are speculative and since § 1915(g) requires danger that is "ready to take place" or "hanging threateningly over one's head" the complaint allegations do not meet the imminent danger exception.
It is the alleged conditions at the time the complaint was filed that determine if plaintiff meets the imminent danger and serious injury prongs of the exception.
"[T]he exception applies if the complaint makes a plausible allegation that the prisoner faced `imminent danger of serious physical injury' at the time of filing."
In
The allegations in the first amended complaint — which are also re-emphasized in plaintiff's opposition (ECF No. 44) to the motion to revoke — mirror those in
In both the first amended complaint and in
Plaintiff points to specific incidents of violence in February of 2009, on September 8, 2009, as well as in 2010 to support the contention that he is in imminent danger. (
As noted above, the court must analyze the imminent danger exception as the situation existed at the time of the operative complaint.
In addition to the purported dangers listed in the first amended complaint, plaintiff's opposition complains of an institutional transfer in April 2016 which would place Plaintiff close to documented enemies. (ECF No. 46 at 1, 2, 7.) However, a transfer in April of 2016 — nearly two years after the first amended complaint was filed — is irrelevant to the conditions that existed when the operative complaint was filed. See
Accordingly, plaintiff has failed to meet his burden of proving the viability of this statutory exception. Thus, plaintiff must submit the appropriate filing fee in order to proceed with this action.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff shall submit, within twenty-one days from the date of this order, the appropriate filing fee. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed.
The court denies the motion for leave to file a second amended complaint (ECF No. 37) without prejudice subject to renewal if plaintiff is able to pay the filing fee.
Currently pending before the court are two motions seeking injunctive relief: a motion for preliminary injunction (ECF No. 40) and a motion for emergency protective order (ECF No. 42).
Injunctive relief "is an extraordinary remedy, never awarded as of right."
Plaintiff has not prayed for any injunctive relief and this is an action for damages only. (ECF No. 16 at 25.) In the motion for preliminary injunction, plaintiff moves this court to enter an order allowing him to bring certain legal property with him when he is released from prison. (ECF No. 40.) First, because a motion for preliminary injunction pursuant to Federal Rule of Civil Procedure 65 concerns the court's ability to preserve the status quo pending a determination on the merits in the case,
Similarly, plaintiff's motion for emergency protective is filed pursuant to Federal Rule 65 — i.e. it is, in essence, a preliminary injunction motion as well. Thus, as with the motion for preliminary injunction, plaintiff's motion for emergency protective order is inappropriate because this is a case for monetary damages, not injunctive relief. Furthermore, this motion, too, is moot because it specifically seeks to stop a temporary transfer of plaintiff to California State Prison, Sacramento — a transfer that was to occur in April of 2016, which is further mooted by the fact that plaintiff was paroled in July of 2016.
Accordingly, the undersigned denies as moot plaintiff's two motions for injunctive relief.
Finally, plaintiff filed a "motion for a special hearing in open court." (ECF No. 49.) The court must deny this motion as well, as it relates to plaintiff's requests for injunctive relief, which are both inappropriate and moot. Plaintiff moves the court to hold a hearing on his proposed transfer to California State Prison, Sacramento in April of 2016. (ECF No. 49 at 1-2.) As with the motion for emergency protective order, this motion is inappropriate in this action for monetary, not injunctive relief, and is also moot on account of the transfer having already taken place and plaintiff being paroled in July of 2016. Thus, the court will deny this motion.
In summation, for the reasons set forth above, IT IS HEREBY ORDERED that:
(1) Defendants' motion to revoke IFP status (ECF No. 38) is granted;
(2) Plaintiff shall submit, within twenty-one days from the date of this order, the appropriate filing fee of $331.00 that is still owed;
(3) Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed;
(4) Plaintiff's motion for leave to file a second amended complaint (ECF No. 37) is denied without prejudice, subject to renewal if plaintiff pays the appropriate filing fee;
(5) Plaintiff's motion for preliminary injunction (ECF No. 40) is denied as moot;
(6) Plaintiff's motion for emergency protective order (ECF No. 42) is denied as moot; and
(7) Plaintiff's motion for a special hearing (ECF No. 49) is denied.