Eckard v. Farrel

FILED IN THE 3 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Sep 07, 2021 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

GABRIEL A. ECKARD, NO: 4:21-CV-05090-RMP Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS v. AND DISMISSING ACTION C/O 2 RYAN FARREL, C/O 2 UNKNOWN, RN DEBRA UNKNOWN and CUS TANNER MINK, Defendants.

17 On July 27, 2021, the Court directed Plaintiff Gabriel A. Eckard, a pro se prisoner at the Washington State Penitentiary, to show cause within thirty (30) days why the Court should grant his application to proceed in forma pauperis.

20 ECF No. 11 at 5. In the alternative, Plaintiff could have paid the $402.00 filing fee. Id. 1 On September 3, 2021, Plaintiff filed a late two-page response. ECF No. 12. After careful review of Plaintiff’s submission, the Court finds that Plaintiff has failed to demonstrate that he was under imminent danger of serious physical injury when he initiated this case and is thus precluded under 28 U.S.C. § 1915(g) from proceeding in this action without prepayment of the filing fee. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

7 Petitioner contends that “the Ninth Circuit appellate court has not upheld the ‘strikes’ in any of the cases cited by the court.” ECF No. 12 at 1. Plaintiff’s contention is not well taken, especially when the Ninth Circuit Court of Appeals has also denied Mr. Eckard in forma pauperis status pursuant to 28 U.S.C. § 11 1915(g). See Eckard v. Cornell, No. 20-35183, (Apr. 23, 2020) Dkt. No. 4.

12 Plaintiff asserts that he is “not attempting to defeat the strikes by threatening to harm himself or by harming himself.” ECF No. 12 at 1. Rather, he is allegedly “in danger of harm due to the deliberate indifference of prison employees in deliberately choosing not to protect him from the effects of his mental illness.” Id. To the extent Mr. Eckard wrote on two sides of a page, only one side was scanned. Prisoner Electronic Filing Guidelines clearly instruct that the scanning process does not allow two sided paper and only the front side of the paper should be used.

1 He claims that he “is not receiving medicaly [sic] necessary psychiatric care due to the over-reaction of prison officials.” Id. These conclusory assertions are insufficient to show that Mr. Eckard was under “imminent danger of serious physical injury” when he filed his complaint on June 11, 2021. See 28 U.S.C. § 5 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055–56 (9th Cir. 2007); see also Ciarpaglini v. Saini, 352 F.3d 328, 330 (“Allegations of past harm do not suffice; the harm must be imminent or occurring at the time the complaint is filed.”).

8 Liberally construing Plaintiff’s assertions in the light most favorable to him, the Court finds that he was failed to overcome the preclusive effects of 28 U.S.C. § 10 1915(g). Because Plaintiff did not avail himself of the opportunity to pay the $402.00 filing fee, he may not proceed with this action.

12 Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is 14 DENIED.

15 2. This action is DISMISSED WITHOUT PREJUDICE for non- 16 payment of the filing fee as required by 28 U.S.C. § 1914.

17 3. The District Court Clerk shall CLOSE the file.

18 4. The Court certifies any appeal of this dismissal would not be taken in 19 good faith.

20 / / / / / / 1 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter judgment, and provide copies to Plaintiff.

3 DATED September 7, 2021.

5 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON 6 United States District Judge