Unreported / Non-Citable
Background
Lamont Shepard, proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983 in the Eastern District of California on November 2, 2026. He did not submit an application to proceed in forma pauperis and did not pay the $405 filing fee required to open the case. The complaint named the warden and correctional employees at the California Substance Abuse Treatment Facility in Corcoran, alleging Eighth Amendment violations arising from an October 29, 2024 incident described as a code 2 riot on a Facility D recreational yard.
According to the complaint, a report following that incident led to Shepard's placement in a restricted housing unit for seven months, which he contends was contradicted by video evidence. He sought a declaratory judgment, compensatory and punitive damages, costs of suit, and a jury trial. Because Shepard is a prisoner who sought to proceed without prepaying fees, the magistrate judge examined whether the three-strikes provision of 28 U.S.C. § 1915(g) barred him from proceeding in forma pauperis.
The Court’s Holding
The magistrate judge took judicial notice of three prior lawsuits Shepard filed while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim: Shepard v. Connolly in the Central District of California (dismissed February 17, 2011), Shepard v. Johnson in the Eastern District of California (dismissed August 7, 2012), and Shepard v. Munoz in the Eastern District of California (dismissed October 8, 2013). Relying on Ninth Circuit precedent holding that dismissals for failure to state a claim or as frivolous count as strikes, the court found that Shepard had incurred at least three strikes before filing this action and was therefore subject to the § 1915(g) bar unless he was under imminent danger of serious physical injury when he filed his complaint.
Applying the imminent danger standard, the court concluded that Shepard's allegations did not satisfy the exception. The complaint described a past disciplinary placement rather than any ongoing serious physical injury or pattern of misconduct likely to result in imminent harm, and the court could identify no genuine emergency involving a real and proximate threat where time was pressing. The magistrate judge therefore ordered the Clerk to assign a district judge and recommended that Shepard be ordered to pay the full $405 filing fee within 30 days, with dismissal to follow if he failed to pay. The findings and recommendations were submitted under 28 U.S.C. § 636(b)(1), with a 14-day objection period.
Key Takeaways
- A prisoner with three or more prior dismissals for frivolousness, maliciousness, or failure to state a claim cannot proceed in forma pauperis unless he was under imminent danger of serious physical injury at the time of filing.
- Courts may take judicial notice of a plaintiff's prior lawsuits and their dismissal records to determine whether strikes exist under 28 U.S.C. § 1915(g).
- Allegations about a completed past event, such as a seven-month stay in restricted housing following a 2024 incident, do not establish the ongoing, real, and proximate threat required for the imminent danger exception.
- The procedural mechanism of a prior dismissal is not dispositive; what matters is the dismissing court's action and the reasons underlying it.
- Failure to pay the full filing fee within the recommended 30-day window would result in dismissal of the action.
Why It Matters
This recommendation illustrates how federal courts apply the Prison Litigation Reform Act's three-strikes rule at the outset of a case, before any merits review. By taking judicial notice of prior dismissals spanning more than a decade, the court confirmed that strikes do not expire and that even older dismissals count toward the § 1915(g) bar.
The decision also underscores the narrow scope of the imminent danger exception: prisoners must plead specific facts showing an ongoing or likely future threat of serious physical injury, not merely describe past alleged constitutional violations. For pro se prisoner litigants, the ruling signals that a complaint focused on historical events will almost certainly require prepayment of the full filing fee to proceed.