(PC) Henderson v. Fresno County Jail

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CURTIS LEE HENDERSON, SR., Case No.: 1:24-cv-01569 JLT SKO 12 Plaintiff, ORDER DECLINING THE FINDINGS AND RECOMMENDATIONS AND GRANTING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS FRESNO COUNTY JAIL, et al., (Docs. 3, 8) 15 Defendants.

17 Curtis Lee Henderson, Sr., seeks to proceed in forma pauperis in this action, in which he alleges violations of his civil rights while incarcerated at the Fresno County Jail. (See Docs. 1, 3.)

19 The magistrate judge found Plaintiff is subject to the three-strikes provision of 28 U.S.C. § 1915, because he had more than three actions dismissed for failure to state a claim prior to filing of this matter. (Doc. 8 at 2-3.) The magistrate judge also determined Plaintiff failed to show imminent danger of serious physical injury to satisfy the exception to Section 1915(g). (Id. at 3-7.)

23 Therefore, the magistrate judge recommended the Court deny Plaintiff’s application to proceed in forma pauperis and he be directed to pay the filing fee in full. (Id. at 7.)

25 Plaintiff filed objections to the Findings and Recommendations, arguing he should be permitted to proceed in forma pauperis. (Doc. 10.) Plaintiff does not dispute the finding that he has three strikes under Section 1915, but “objects on the grounds that he was at the time the complaint was filed in imminent danger of serious physical harm and still is in imminent danger from being sexually assaulted by the Defendant Corporal Campos.” (Id. at 1.)

2 In the complaint, Plaintiff alleged that on October 31, 2024, “Defendants Campos and Blackmon went to [Plaintiff’s] cell with the specific intent to sexually assault [him].” (Doc. 1 at 16.) He asserts that he is incompetent, and wears diapers. (Id.) According to Plaintiff, Campos “pushed his hand down inside [Plaintiff’s] diaper from behind and forcefully penetrated … [his] anus with his fingers.” (Id.) Plaintiff alleges Campos’s fingernails cut his anus, which caused rectal bleeding. (Id. at 16-17.) Plaintiff asserts he bleeds “every time” he “uses the bathroom to [defecate]” and “his rectum will not stop bleeding.” (Id. at 17.) In addition, Plaintiff alleges that on November 23, 2024—only weeks before the complaint was filed— he told the prison medical providers that “he has active bleeding from his rectum and requested to be examined,” and the treatment request was denied.1 (Id.) In the Objections, Plaintiff reports his rectum “continues to bleed” and “it has become infected.” (Doc. 10 at 1.) The Court finds these allegations sufficient to support a conclusion that Plaintiff was in imminent danger from serious physical injury at the time he filed the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding the imminency requirement may be satisfied by allegations of “an ongoing danger”); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (“specific fact allegations of ongoing serious physical injury” may satisfy the Section 1915(g) exception).

18 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case.

19 Having carefully reviewed the entire matter, the Court finds the determination that Plaintiff has three or more strikes under Section 1915 is supported by the record. However, taking Plaintiff’s allegations as true, the allegations are sufficient to invoke the imminent danger exception of Section 1915(g). Accordingly, the Court ORDERS: 23 1. The Findings and Recommendations dated January 3, 2025 (Doc. 8) are 24 DECLINED.

25 2. Plaintiff’s application to proceed in forma pauperis (Doc. 3) is GRANTED.

27 1 The magistrate judge indicated “Plaintiff’s disagreement with the treatment he was offered on November 23, 2024, is insufficient to meet the imminent danger exception.” (Doc. 8 at 7.) However, Plaintiff alleges he has been “denied 1 3. The matter is referred to the magistrate judge for further proceedings.

3 IT IS SO ORDERED.

4| Dated: _ January 16, 2025 Charis [Tourn TED STATES DISTRICT JUDGE