Perryman v. California Department of Corrections and Rehabilitation
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court reviewed a pro se prisoner's motion to proceed in forma pauperis (IFP) and a civil rights complaint, finding that the plaintiff had three prior 'strikes' under the Prison Litigation Reform Act and failed to adequately plead imminent danger. The court denied the IFP motion, dismissed the action for failure to pay the filing fee, and denied the motion for a temporary restraining order as moot.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) Denied“Accordingly, the Court DENIES Perryman’s motion to proceed IFP, Dkt. 2” | agree with court The court correctly applied the three-strikes rule of 28 U.S.C. § 1915(g), noting the plaintiff's prior disqualifying dismissals. The court then correctly applied the 'imminent danger' exception, finding that the plaintiff's allegations of past injury and ongoing inadequate care did not constitute a specific, imminent harm. This aligns with Ninth Circuit precedent requiring specific, imminent danger rather than generalized fears. |
Civil Action Dismissed for Failure to Pay Filing Fees“DISMISSES this civil action for failure to pay the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a).” | agree with court Dismissal for failure to pay the filing fee is a standard procedural consequence when a prisoner is denied IFP status and does not pay the required fees. The court correctly cited 28 U.S.C. § 1914(a) as the authority for the fee requirement. |
Motion for Temporary Restraining Order Denied as Moot“Accordingly, the Court also DENIES Perryman’s motion for temporary restraining order as moot. Dkt. 6.” | agree with court Because the underlying civil action was dismissed for failure to pay fees, the motion for a temporary restraining order within that action became moot. This is a logical procedural outcome. |
The order itself: sound — The order correctly applies the statutory three-strikes rule and the 'imminent danger' exception. It cites relevant Ninth Circuit and district court precedent to support its conclusion that the plaintiff's allegations of past injury and ongoing inadequate care do not meet the high bar of 'specific, imminent harm.' The reasoning is direct and answers the motion with the appropriate authorities.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 3:24-cv-1633-JO-AHG DAVID PERRYMAN 11 CDCR #AB-1204, ORDER DENYING MOTION TO 12 PROCEED IN FORMA PAUPERIS Plaintiff, AND DISMISSING CIVIL ACTION 13 vs. FOR FAILURE TO PAY FILING 14 FEES REQUIRED BY CALIFORNIA DEPARTMENT OF 28 U.S.C. § 1914(a) 15 CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 18 19 Plaintiff David Perryman is a prisoner at the Richard J. Donovan Correctional 20 Facility in San Diego, California. Proceeding pro se, he filed a civil rights complaint 21 pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis (“IFP”). Dkts. 1, 22 2. Under § 1915(g), a prisoner with three or more “strikes,” i.e., prior civil cases or appeals 23 dismissed as frivolous, malicious, or for failing to state a claim, “cannot proceed IFP” 24 absent allegations of “imminent danger of serious physical injury.” Andrews v. King, 398 25 F.3d 1113, 1116 n.1 (9th Cir. 2005); 28 U.S.C. § 1915(g). Perryman admits that he is one 26 of these prisoners but attempts to plead that he is facing imminent danger. See Perryman 27 v. Lynch, 2023 WL 5835728, at *2 (E.D. Cal. Aug. 11, 2023) (identifying eight prior strikes 1 || disqualifying Perryman from proceeding IFP). In his September 10, 2024 complaint, 2 Perryman alleges that he suffered a heart attack and broke some of his ribs on July 27, 3 || 2024, and asserts that the follow-up medical care he has been receiving is inadequate and 4 ||ineffective. Jd. at 5. While Plaintiff identifies a past injury and alleges ongoing inadequate 5 || care for those injuries, he does not identify a specific, imminent harm that will result from 6 ||not receiving his preferred treatment. Because generalized fears of possible future harm 7 || do not constitute allegations of specific, imminent dangers, he has not met the requirements 8 ||to proceed IFP in this matter. See Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 9 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021). 10 Accordingly, the Court DENIES Perryman’s motion to proceed IFP, Dkt. 2, and 11 || DISMISSES this civil action for failure to pay the $405 civil filing and administrative fee 12 required by 28 U.S.C. § 1914(a). Accordingly, the Court also DENIES Perryman’s motion 13 || for temporary restraining order as moot. Dkt. 6. The Court directs the Clerk of the Court 14 |/to CLOSE this case. 15 || IT IS SO ORDERED. 16 17 || Dated: October 21, 2024 18 19 20 Ho orgbfe Tinsook Ohta 21 United States District Judge 22 23 24 25 26 27