Opinion
Case No. 1:15-cv-01918 AWI DLB PC
03-03-2016
RAYMOND ALFORD BRADFORD, Plaintiff, v. C. OGBUEHI, et al., Defendants.
ORDER (1) DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, (2) DISMISSING ACTION, WITHOUT PREJUDICE, PURSUANT TO 28 U.S.C. § 1915(G), AND (3) DIRECTING CLERK OF COURT TO ENTER JUDGMENT (ECF Nos. 3 and 4)
Plaintiff Raymond Alford Bradford, # H-16258, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 28, 2015. On January 22, 2016, he filed a motion for leave to proceed in forma pauperis.
Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Since Plaintiff is subject to 28 U.S.C. § 1915(g), Plaintiff must demonstrate that he was in imminent danger of serious physical injury at the time he filed suit, and the allegations must be plausible. Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007).
The Court takes judicial notice of case numbers 2:98-cv-00180-FCD-JFM PC, Bradford v. White (E.D. Cal.) (dismissed 06/03/1999 as time barred); 2:02-cv-01859-FCD-GGH PC, Bradford v. Terhune (E.D. Cal.) (dismissed 06/18/2003 pursuant to section 1915(g) on a motion to dismiss); 1:04-cv-05496-AWI-DLB PC, Bradford v. Terhune (E.D. Cal.) (dismissed 10/21/2004 for failure to state a claim); 2:05-cv-00862-FCD-DAD PC, Bradford v. Grannis (E.D. Cal.) (dismissed 09/30/2005 for failure to state a claim and as frivolous); and 1:07-cv-01031-OWW-LJO, Bradford v. Superior Court of California (E.D. Cal.) (dismissed 08/21/2007 as frivolous).
Plaintiff names as Defendants: C. Ogbuehi, M.D.; and Nietas, R.D. Plaintiff claims that he was diagnosed in 1993 with ulcerative colitis and celiac disease which causes him to suffer bloody diarrhea, stomach cramps, and weight loss on a daily basis. Plaintiff states that on August 5, 2015, dietician Nietas advised Plaintiff that he did not have ulcerative colitis or celiac disease and therefore no treatment was needed. He claims Nietas told him Defendant Ogbuehi ordered the special diet and nutritional supplements discontinued on August 21, 2015. He claims he continues to suffer from bloody diarrhea, stomach cramps, and weight loss daily.
The Court finds that Plaintiff has not met the imminent danger exception. Plaintiff's assertion of imminent danger of serious physical injury is conclusory at best. Andrews, 493 F.3d at 1055. Plaintiff does not provide any factual allegations regarding the discontinuance of the special diet or nutritional supplements in support of his claim of imminent danger of serious physical injury. Plaintiff admits he has suffered from bloody diarrhea, stomach cramps and weight loss since 1993, and continues to do so today, regardless of his special diet and supplements. In fact, in a prior case in this district, case no. 1:13-cv-00045 BAM PC, Bradford v. Diaz, Plaintiff attempted to bypass the requirements of § 1915(g) by claiming the discontinuation of his pain medications in 2011 was responsible for the very same ailments he claims the denial of his special diet and supplements caused in this case, specifically, "discomfort, severe stomach cramps, bloody diarrhea and weight loss." Id. at *2. In that case, the Court found Plaintiff's claim of imminent danger to be conclusory, unsupported, and implausible. Here as well, the Court does not find Plaintiff's allegation of imminent danger of serious physical injury to be plausible or factually supported. Andrews, 493 F.3d at 1055.
The Court takes judicial notice of Case No. 1:13-cv-00045 BAM PC, Bradford v. Diaz, (E.D. Cal. 2013) (dismissed for failure to pay filing fee pursuant to § 1915(g)). --------
The Court has reviewed Plaintiff's complaint and his allegations do not satisfy the imminent danger exception to section 1915(g). Id., at 1055-56. Therefore, Plaintiff must pay the $400.00 filing fee if he wishes to litigate his claims.
Accordingly, the Court HEREBY ORDERS as follows:
1. Plaintiff's motion for leave to proceed in forma pauperis in this action is DENIED;IT IS SO ORDERED. Dated: March 3, 2016
2. This action is DISMISSED, without prejudice to re-filing accompanied by the $400.00 filing fee; and
3. The Clerk of the Court shall enter judgment.
/s/_________
SENIOR DISTRICT JUDGE