Weston v. Deputy Sheriff #2549

Background

Andre D. Weston, an inmate at Santa Rita Jail, filed this civil-rights action without a lawyer under 42 U.S.C. § 1983. A magistrate judge initially dismissed his complaint with permission to amend and separately granted his request to proceed without paying the filing fee. Weston then filed an amended complaint.

After reassignment, the court ordered Weston to explain why his status allowing him to proceed without paying the filing fee should not be revoked. The court stated that Weston had more than three prior cases dismissed for reasons that counted as “strikes” under 28 U.S.C. § 1915(g). The court also explained that a prisoner with three or more strikes may proceed without paying the filing fee only if he was in imminent danger of serious physical injury when he filed the action. The court told Weston that he could avoid dismissal by paying the filing fee.

Weston’s Response

Weston did not dispute that he had the other cases identified by the court or that those cases counted as strikes. He argued that he qualified for the imminent-danger exception based on alleged excessive force by Deputy John Doe #2549 on or about September 7, 2023, which he said injured his shoulder. He also described later allegations involving another deputy, an alleged attempt by another inmate to harm him, and dissatisfaction with the medical treatment he received for his shoulder pain.

Court’s Analysis

The court concluded that Weston had incurred more than three strikes under § 1915(g). It then considered whether he had shown imminent danger connected to the subject of this lawsuit at the time he filed the complaint.

The court found that Weston did not identify a danger posed by Deputy John Doe #2549 when he filed the complaint. The alleged danger involving another deputy was unrelated to the first deputy’s actions and occurred almost a year after the complaint was filed. The court also held that Weston’s disagreement with the medical care he was receiving did not show imminent danger. In addition, any inadequate-medical-care claim would be a different claim from the one asserted in the complaint.

The court stated that § 1915(g) did not allow it to maintain Weston’s filing-fee waiver as an act of mercy. Because Weston failed to show cause why his status should not be revoked, the court revoked that status.

Disposition

Judge P. Casey Pitts revoked Weston’s pauper status and dismissed the action without prejudice. The order stated that Weston could refile his excessive-force claim in a new case if he paid the filing fee. It also stated that the order did not affect his ability to bring a new case concerning the ongoing threat involving Deputy Andre or a new case concerning medical care, if he paid the filing fee for those cases. The clerk was directed to terminate all pending motions and close the file.