United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO PROCEED IN FORMA
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
filed a voluntary motion to dismiss his RLUIPA claim against
defendant Belinda D. Stewart. Dkt. 6. Attached to this
motion, plaintiff included an amended complaint. Dkt. 6-1.
The amended complaint contains facts that demonstrate
plaintiff was under threat of imminent harm at the time of
his filing. The Court therefore grants plaintiff's motion
to proceed in forma pauperis.
1915(g), enacted April 26, 1996, provides that a prisoner who
brings three or more civil actions or appeals that are
dismissed as frivolous or for failure to state a claim will
be precluded from bringing any other civil action or appeal
in forma pauperis “unless the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C.
noted in the Court's previous order to show cause,
plaintiff has three cases that have been dismissed as
frivolous or dismissed for failure to state a claim. Dkt. 5
at 2. Thus, plaintiff may not proceed with this complaint
without prepayment of the full filing fee, absent a showing
that he was “under imminent danger of serious physical
injury, ” at the time he signed his civil rights
complaint on May 23, 2017. See 28 U.S.C. §
1915(g). “[A] prisoner who alleges that prison
officials continue with a practice that has injured him or
others similarly situated in the past will satisfy the
‘ongoing danger' standard and meet the imminence
prong of the three-strikes exception.” Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). A
plausible allegation that the prisoner faced “imminent
danger of serious physical injury” will satisfy this
requirement. Id. at 1056 (inmate alleged that the
threat he faced from contagious diseases violated the Eighth
Amendment's prohibition against cruel and unusual
punishment, and submitted specific facts supporting such a
alleged in his original complaint that defendants had
installed a new version of Lexis Nexis that allowed other
prisoners to see his previous convictions. Dkt. 1-1. He
stated that, because of this access, other prisoners could
threaten him with violence based on his prior convictions.
Id. He did not specifically state what harm he had
been threatened with or who had threatened him with harm.
Id. The Court asked plaintiff to plead specific
facts, if any, related to his particular and continuing
injury, and facts related to whether or not defendants knew
of the particular harm and failed to address the harm in
order to qualify for § 1915(g)'s exception to the
three-strikes bar. Dkt. 5; see Austin v. Manuma,
2012 WL 1435690, at *2 (D. Haw. Apr. 25, 2012).
11, 2017, plaintiff filed a motion to voluntarily dismiss one
of his claims and attached an amended complaint. Dkt. 6. In
his amended complaint, plaintiff alleges that since
defendants installed the new Lexis Nexis system, he
“has received numerous threats that he needs to be
assaulted, raped, and/or murdered just like his victim was,
because of his crimes, and specifically by inmate Keith Brian
Colberg #911134, who got Mr. Entler's criminal
information off the Law Library Computer. He alleges that
inmate Colberg was trying to get other prisoners to assault
or rape Mr. Entler because of his crimes. Another inmate that
currently (at the time of filing of this complaint), lives
below Mr. Entler in Rainier B-207 (Mr. Entler does not know
his name), screams at Mr. Entler that he will “kick Mr.
Entler's ass, or kill him, for looking into his cell,
because Mr. Entler is a rapist.” Dkt. 6-1 at 4-5. He
also alleges that “despite Defendant Warner and
Gonzalez's knowledge of what other prisoners will do to
Mr. Entler because of his criminal information, Defendant
Warner and Gonzalez are deliberately indifferent to Mr.
Entler's safety, and are failing to protect Mr. Entler
within the Department of Corrections (DOC).”
Id. at 4.
prisoner who alleges that prison officials continue with a
practice that has injured him or others similarly situated in
the past will satisfy the ‘ongoing danger' standard
and meet the imminence prong of the three-strikes
exception.” Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007). A plausible allegation that the
prisoner faced “imminent danger of serious physical
injury” will satisfy this requirement. Id. at
1056 (inmate alleged that the threat he faced from contagious
diseases violated the Eighth Amendment's prohibition
against cruel and unusual punishment, and submitted specific
facts supporting such a claim).
Court, having reviewed plaintiff's response to the show
cause order and application to proceed in forma
pauperis, hereby finds and ORDERS as follows:
Plaintiff's declaration indicates that he is unable to
afford the Court's filing fee or give security therefore.
Accordingly, plaintiff's application to proceed in
forma pauperis (Dkt. 1) is GRANTED. As set forth below,
an initial partial filing fee will be collected, and
plaintiff is thereafter required to make monthly payments of
20 percent of the preceding month's income credited to
his account until the full amount of the filing fee is
Pursuant to 28 U.S.C. § 1915, and plaintiff's
approved application to proceed in forma pauperis,
the agency having custody of the above-named plaintiff is
directed to calculate an initial partial filing fee equal to
20 percent of the greater of either: (a) the average monthly
deposits to the prisoner's account; or (b) the average
monthly balance in the prisoner's account for the 6-month
period immediately preceding the date of this Order. The
initial partial filing fee should be forwarded to the Clerk
of Court as soon as practicable.
if the prisoner's account exceeds $10.00, each month the
agency having custody of the prisoner is directed to collect
and forward payments equal to 20 percent of the
prisoner's preceding month's income credited to the
prisoner's account. In the event that the monthly payment
would reduce the prisoner's account below $10.00, the
agency should collect and forward only that amount which
would reduce the prisoner's account to the $10.00 level.
Please note that this $10.00 limit does not apply to the
initial partial filing fee described above. Finally, the
monthly payments should be collected and forwarded to the
Court until the entire filing fee ($350.00) for this matter
has been paid.
Clerk is directed to send a copy of this Order to plaintiff,
to the financial officer of this Court, and to the agency
having custody of plaintiff.
Court directs the Clerk to docket the proposed amended
complaint (Dkt. 6-1) as the amended complaint. Because the
amended complaint does not contain any allegations against
defendant Belinda Stewart or a RLUIPA claim, the Court denies