(PC) Dunigan v. CDCR ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUNIGAN, No. 2:19-cv-2501 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDCR, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. 19 I. Three Strikes Analysis 20 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF No. 3. 21 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 22 authorize the commencement and prosecution of any suit without prepayment of fees by a person 23 who submits an affidavit indicating that the person is unable to pay such fees. However, 24 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 25 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 26 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 27 unless the prisoner is under imminent danger of serious physical injury. 28 1 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 2 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 3 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 4 169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in 5 forma pauperis] status only when, after careful evaluation of the order dismissing an action, and 6 other relevant information, the district court determines that the action was dismissed because it 7 was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th 8 Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds 9 that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ 10 such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such 11 dismissal as denial of the prisoner’s application to file the action without prepayment of the full 12 filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). 13 Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint 14 on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff 15 then fails to file an amended complaint” regardless of whether the case was dismissed with or 16 without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 17 Inspection of other cases filed by plaintiff in this court has led to the identification of at 18 least three cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the 19 following lawsuits filed by plaintiff:1 20 1. Dunigan v. California Department of Corrections, E.D. Cal. No. 2:01-cv-1591 WBS JFM 21 (complaint dismissed with leave to amend for failure to state a claim, case dismissed on 22 March 29, 2002, for failure to file an amended complaint); 23 //// 24 //// 25 1 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 2. Dunigan v. United States, E.D. Cal. No. 2:10-cv-2992 JAM KJN (case dismissed as 2 frivolous on May 2, 2011); 3 3. Dunigan v. United States, E.D. Cal. No. 2:12-cv-3048 TLN CKD (complaint dismissed 4 with leave to amend for failure to state a claim; case dismissed on September 16, 2013, for 5 failure to file an amended complaint). 6 All of the preceding cases were dismissed well in advance of the December 8, 2019 filing2 7 of the instant action and none of the strikes have been overturned. Therefore, this court finds that 8 plaintiff is precluded from proceeding in forma pauperis unless she is “under imminent danger of 9 serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must have 10 alleged facts that demonstrate that she was “under imminent danger of serious physical injury” at 11 the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 12 (“[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of 13 the ‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie, 239 F.3d 14 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); 15 Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 885 (5th 16 Cir. 1998). 17 The complaint names ninety-six defendants, including individuals and both private and 18 government entities, and makes allegations regarding plaintiff’s conviction, his ability to use the 19 administrative appeals process, interference with previous lawsuits, unspecified retaliation, and 20 various conspiracies. However, none of the allegations demonstrate an imminent risk of serious 21 physical injury at the time of filing, and the undersigned will therefore recommend that plaintiff 22 be required to pay the filing fee in full or have the complaint dismissed. 23 II. Plain Language Summary of this Order for a Pro Se Litigant 24 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 25 status unless you show the court that you were in imminent danger of serious physical injury at 26 the time you filed the complaint. You have not shown that you were in imminent danger of 27 2 Since plaintiff is a prisoner proceeding pro se, she is afforded the benefit of the prison mailbox 28 rule. Houston v. Lack, 487 U.S. 266, 276 (1988). 1 | serious physical injury and so it is being recommended that your motion to proceed in forma 2 || pauperis be denied. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 4 | assign a United States District Judge to this action. 5 IT IS FURTHER RECOMMENDED that plaintiffs motion to proceed in forma pauperis 6 || (ECF No. 3) be denied and plaintiff be ordered to pay the entire $400.00 in required fees within 7 || thirty days or face dismissal of the case. 8 These findings and recommendations are 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 days 10 | after being served with these findings and recommendations, plaintiff may file written objections 11 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 12 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 13 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 14 | (9th Cir. 1991). 15 || DATED: December 19, 2019 ~ 16 Chtten— Lhane ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28