(PC) Womack v. Gibbons ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY JEROME WOMACK, ) Case No.: 1:19-cv-00615-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS BE DENIED 14 W. GIBBONS, et al., ) ) [ECF No. 12] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Rodney Jerome Womack is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for leave to proceed in forma pauperis, filed 21 August 8, 2019. 22 I. 23 LEGAL STANDARD 24 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 25 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 26 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 27 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 28 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 1 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 2 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 3 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 4 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 5 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 6 U.S.C. § 1915(g). 7 II. 8 DISCUSSION 9 As a threshold issue before turning to whether the PLRA applies to this case, the Court must 10 examine whether Plaintiff’s claim is properly brought in a civil rights action, pursuant to 42 U.S.C. § 11 1983, rather than in a petition for writ of habeas corpus. In this case, a finding in Plaintiff’s favor, i.e., 12 that he is being subjected to retaliation and excessive force, would not necessarily impact the duration 13 of his confinement. Therefore, his claim falls outside of the core of habeas corpus, and is properly 14 brought in a civil rights complaint. See Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en 15 banc). 16 Turning to the application of the PLRA in this matter, the Court finds that Plaintiff has incurred 17 three or more strikes under section 1915(g) prior to filing this lawsuit. The Court takes judicial notice 18 of the following cases: Womack v. Daley, Case No. 3:99-cv-02469-NMC, 1999 Dist. LEXIS 24146 19 (N.D. Cal.) (dismissing on July 6, 1999 as frivolous); Womack v. Super. Ct. Judge, Case No. 3:99-cv- 20 02470-NMC, 1999 U.S. Dist. LEXIS 24145 (N.D. Cal) (dismissed on July 6, 1999 for failure to state a 21 claim); Womack v. Donahoo, Case No. 2:12-cv-03110-WBS-EFB (E.D. Cal.) (dismissed on September 22 13, 2013 for failure to state a claim); Womack v. Perry, Case No. 2:15-cv-01858-JAM-DB (E.D. Cal.) 23 (dismissed on February 21, 2018 for failure to prosecute, following a screening order dismissing second 24 amended complaint for failure to state a cognizable claim). See Harris v. Mangum, 863 F.3d 1133, 1142 25 (9th Cir. 2017) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of 26 the dismissal or the procedural posture is immaterial. Instead, the central question is whether the 27 dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.”) (citing El-Shaddai v. 28 1 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted). Plaintiff has been informed 2 in prior cases that he is subject to § 1915(g).1 3 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 4 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 5 the conditions he faced at the time he filed his complaint on May 6, 2019. Andrews, 493 F.3d at 1053- 6 1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, as are 7 any subsequent conditions. Id. at 1053. While the inquiry is merely procedural rather than a merits- 8 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 9 The Court finds that Plaintiff’s complaint allegations do not meet the imminent danger 10 exception. Andrews, 493 F.3d at 1053. Plaintiff contends that on December 22, 2018, he was 11 “assaulted” by four officers in retaliation for his refusal to accept a cellmate and the filing of three inmate 12 appeals against other staff members. On this date, Plaintiff was sent to mental health suicide watch. 13 Plaintiff explained to the mental health clinician that he was being subjected to harassment, and Plaintiff 14 was advised that he would be moved to a different building. However, officer Gibbons denied the 15 request. Plaintiff “explained to Gibbons that Im not leaving suicide watch. Gibbons got about five other 16 correctional officers opened the door to the suicide tank I was occupying and told me to put my hands 17 behind my back to be handcuffed. I complied and was escorted back to Building 2. I was placed back 18 in my original cell B2, cell-102, with my hands handcuffed behind my back. The door was closed to 19 the cell and the tray-slot was opened. An officer instructed me to back-up to the door and put my hands 20 through the tray-slot to be unhandcuffed, I refused. I explained to the officer that I need to talk to a 21 different S.G.T. and my mental health clinician then I will give them the handcuffs. S.G.T Gibbons 22 came to my cell and ordered me to put my hands through the tray slot to be unhandcuffed. I refused, 23 and informed S.G.T. Gibbons I need to talk to my mental health clinician. Gibbons ordered my cell 24 door to be opened, entered the cell and ordered me to get down on my knees, I refused. Gibbons then 25 kicked my feet up from under me and I hit the floor with my back hard. At that point three other 26 27 1 The Court takes judicial notice of Womack v. Sullivan, Case No. 2:14-cv-00085-WBS-EFB (E.D. Cal.) (ECF No. 5), aff’d 594 Fed. App’x 402 (9th Cir. 2015), and Womack v. Swingle, Case No. 2:17-cv-00829-JAM-AC (E.D. Cal.) (ECF 28 1 correctional officers ran into my cell and started viciously, brutally attacking me, pummeling me in my 2 head, face and upperbody [sic] and back areas. After I was beat senseless the officers threated a long 3 chain around my handcuffs and threaded the other part of the chain through the tray slot. S.G.T. Gibbons 4 ordered the cell door to be closed, then the officers pulled their end of the chain through the tray slot 5 which forced me to be dragged across the cell-floor with my hands handcuffed behind my back. This 6 action allowed the officers to forcefully pull my hands through the tray slot to be unhandcuffed. Once 7 unhandcuffed the officers walked away laughing and S.G.T. Gibbons stated now he would move me to 8 another building. These officers refused me any type of medical treatment after this attack. The attack 9 took place on 12/22/18, I received my first medical recorded acknowledgment of this attack on 1/5/19.” 10 (Compl. at 4-6.) 11 Plaintiff’s allegations of excessive force are based on a single incident which took place on 12 December 22, 2018, in which Plaintiff admittedly failed to comply with several direct orders by officers 13 and do not satisfy the imminent danger exception. In addition, Plaintiff’s claim that he is continuously 14 subjected to retaliation at level four institutions is vague and speculative. See Abdul-Akbar v. McKelvie, 15 239 F.3d 307, 313 (3d Cir. 2001) (en banc) (while declining to reach question of whether “imminent 16 danger” encompasses an ongoing danger of serious physical injury, noting that the plaintiff’s allegations 17 of past acts of physical harassment were not sufficiently specific or related to support an inference of an 18 ongoing danger). Moreover, Plaintiff acknowledges that he was moved from Building 2 where the 19 alleged harassment and incident took place. Furthermore, the Court notes that Plaintiff raised similar 20 claims in Womack v. Baughman, Case No. 2:17-cv-02708-TLN-KJN (E.D. Cal.) and it was determined 21 that Plaintiff failed to meet the “imminent danger” exception. Based on the allegations in the complaint, 22 Plaintiff has failed to present a plausible claim that he was under imminent danger of serious physical 23 injury at the time of filing. Consequently, Plaintiff is ineligible to proceed in forma pauperis in this 24 action, and he should be required to pre-pay the $400 filing fee to proceed in this case. 25 /// 26 /// 27 /// 28 /// 1 IV. 2 RECOMMENDATIONS 3 Accordingly, it is HEREBY RECOMMENDED that: 4 1. The motion to proceed in forma pauperis (ECF No. 12), be DENIED, pursuant to 28 5 US.C. § 1915(g); and 6 2. Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service of 7 the Court’s order adopting this Findings and Recommendation. 8 These Findings and Recommendations will be submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 10 || after being served with these Findings and Recommendations, Plaintiff may file written objections 11 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 13 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 || IT IS SO ORDERED. A (re 'T lated: _ August 12, 2019 OF 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28