(PC) Driver v. ADA 1824 Panels ( 2019 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 BILLY DRIVER, JR., Case No. 1:19-cv-01718-SAB (PC) 9 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 10 v. ACTION 11 ADA 1824 PANELS, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S 12 Defendants. APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 13 (ECF No. 4) 14 THIRTY (30) DAY DEADLINE 15 16 Plaintiff Billy Driver, Jr. is a state prisoner proceeding pro se in this civil rights action 17 pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on December 10, 2019. (ECF No. 4) 18 Currently before the Court is Plaintiff’s application to proceed in forma pauperis pursuant 19 to 28 U.S.C. § 1915, filed on December 10, 2019. (ECF No. 4.) 20 I. 21 LEGAL STANDARD 22 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted “to curb frivolous 23 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). 24 28 U.S.C. § 1915(g) provides that: “In no event shall a prisoner bring a civil action . . . under this 25 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 26 facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 27 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 28 prisoner is under imminent danger of serious physical injury.” Therefore, if a prisoner has incurred 1 three or more “strikes” (i.e., three or more cases that were dismissed on the grounds that the cases 2 were frivolous, malicious, or failed to state a claim upon which relief may be granted) before filing 3 a new civil action, the prisoner is precluded from proceeding in forma pauperis in the new civil 4 action unless the complaint makes a plausible allegation that the prisoner faced “imminent danger 5 of serious physical injury” at the time the complaint was filed. Andrews v. Cervantes, 493 F.3d 6 1047, 1053 (9th Cir. 2007); see Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (explaining 7 that, to qualify for the imminent danger exception under § 1915(g), an inmate must provide 8 “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing 9 the likelihood of imminent serious physical injury[]”). 10 II. 11 DISCUSSION 12 Initially, the Court finds that Plaintiff has incurred three or more “strikes” under § 1915(g) 13 prior to filing the instant civil action. The Court take judicial notice of the following cases1: (1) 14 Driver v. Martel, No. 2:08-cv-01910-GEB-EFB (E.D. Cal.) (dismissed on September 15, 2009 for 15 failure to state a claim); (2) Driver v. Kelso, No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed on 16 September 12, 2012 for failure to state a claim, after Plaintiff failed to file an amended complaint 17 following a screening order dismissing complaint for failure to state a claim and warning plaintiff 18 that failure to file an amended complaint would result in action being dismissed for failure to state 19 a claim); and (3) Driver v. Epp, No. 2:12-cv-00589-EFB (E.D. Cal.) (dismissed on September 5, 20 2012 for failure to state a claim). See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) 21 (“Accordingly, we hold that when (1) a district court dismisses a complaint on the ground that it 22 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 23 amended complaint, the dismissal counts as a strike under § 1915(g).”). Therefore, Plaintiff’s 24 application to proceed in forma pauperis must be denied unless his complaint makes a plausible 25 allegation that he faced “imminent danger of serious physical injury” at the time that he filed his 26 complaint on December 10, 2019. Andrews, 493 F.3d at 1053-56. 27 1 The Court takes judicial notice of these cases pursuant to Federal Rule of Evidence 201(b)(2). See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007); Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 28 2005); U.S. el rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 1 In his complaint, Plaintiff alleges that, on August 12, 2014, correctional staff members at 2 California State Prison, Los Angeles County unlawfully confiscated his legal documents and 3 impeded his constitutional right to access the courts. (ECF No. 1, at 3.) Second, Plaintiff alleges 4 that, on November 22, 2019, a correctional officer at Kern Valley State Prison assisted Plaintiff in 5 filing an ADA accommodation request to obtain funds to hire an attorney so that he can re-file the 6 lawsuit against two California State Prison, Los Angeles County correctional staff members, but 7 his request for an ADA accommodation has not been responded to even though more than two 8 weeks have passed. (Id. at 4.) Third, Plaintiff alleges, under the heading of “Unlaw Keyhea 9 order(s) forced medication/painful injections,” that, on January 3, 2017, he received a “115x 10 psych eval notice on 2017 @ CSP-LAC Lieutenant Grave(s) issue order(s) to: reduce 115x and 11 115 down to (A) 128 Info chrono[.]” (Id. at 5.) Finally, Plaintiff alleges that he did not submit or 12 appeal a request for administrative relief because “imminent danger(s) of more physical harm(s) 13 @ the hand(s) of rogue violent guards.” (Id. at 4, 5.) 14 However, these allegations fail to demonstrate that Plaintiff was in imminent danger of 15 serious physical injury at the time Plaintiff filed his complaint. Andrews, 493 F.3d at 1056-57. 16 Initially, since Plaintiff is no longer incarcerated at California State Prison, Los Angeles County, 17 he cannot be under imminent danger of serious physical injury from persons at California State 18 Prison, Los Angeles County. Further, Plaintiff’s allegations regarding unlawful Keyhea orders, 19 forced medication, and painful injections are too vague and conclusory to establish that Plaintiff 20 was in imminent danger of serious physical harm at the time his complaint was filed. White v. 21 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998) (stating that “vague and utterly conclusory 22 assertions” of harm are insufficient to establish imminent danger of serious physical harm under § 23 1915(g)). Finally, Plaintiff’s contentions about being in imminent danger of “more physical 24 harm(s) [at] the hand(s) of rogue violent guards” are conclusory and merely speculative. 25 Blackman v. Mjening, No. 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. 26 Oct. 4, 2016) (“Imminent danger of serious physical injury must be a real, present threat, not 27 merely speculative or hypothetical.”). Therefore, since Plaintiff has not satisfied the imminent 28 danger exception to three-strikes rule of § 1915(g), Plaintiff’s application to proceed in forma 1 | pauperis must be denied. If Plaintiff wishes to proceed with this action, Plaintiff must pre-pay 2 | the $400.00 filing fee in full. 3 Il. 4 ORDER AND RECOMMENDATIONS 5 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 6 | Fresno District Judge to this action. 7 Further, IT IS HEREBY RECOMMENDED that: 8 1. Plaintiff's application to proceed in forma pauperis, ECF No. 4), be DENIED, 9 pursuant to 28 U.S.C. § 1915(g); and 10 2. Plaintiff be ordered to pay the $400.00 filing fee in full in order to proceed with 11 this action. 12 These findings and recommendations will be submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 14 | days after being served with these findings and recommendations, Plaintiff may file written 15 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendation.” Plaintiff is advised that the failure to file objections within the 17 || specified time may result in the waiver of the “right to challenge the magistrate’s factual 18 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 19 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: _December 16, 2019 __ OO 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28