(PC)Harris v. Torrs ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, Case No.: 1:19-cv-01171 JLT (PC) 12 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE; AND 13 v. FINDINGS AND RECOMMENDATIONS 14 SERGEANT TORRES, THAT PLAINTIFF BE REQUIRED TO PRE-PAY THE FILING FEE BEFORE 15 Defendant. PROCEEDING WITH THIS ACTION 16 (Doc. 1) 17 FOURTEEN-DAY DEADLINE 18 Plaintiff is a state prisoner who brings this action against a governmental employee who is 19 accused of violating plaintiff’s constitutional rights. (Doc. 1.) Generally, the Court is required to 20 screen complaints brought by inmates seeking relief against a governmental entity or an officer or 21 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or 22 portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to 23 state a claim upon which relief may be granted, or that seek monetary relief from a defendant who 24 is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any 25 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 26 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 27 28 U.S.C. § 1915(e)(2)(B)(ii). 28 1 I. Pleading Standard 2 A complaint must contain “a short and plain statement of the claim showing that the pleader 3 is entitled to relief. . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted inferences,” Doe I 7 v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 8 omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. 9 at 678. 10 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 11 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate 12 that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 13 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to 14 state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 15 962, 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have 16 their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 17 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 18 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 19 at 969. 20 II. Plaintiff’s Allegations 21 Plaintiff’s claim arose while he was incarcerated at California State Prison in Corcoran, 22 California. He names a single defendant in this damages action: Sergeant Torres. 23 Plaintiff’s allegations may be fairly summarized as follows: 24 Plaintiff is vision-impaired and refuses to attend “school” because he cannot see small 25 print. Sergeant Torres has conducted a search of his cell twice in one week, taking plaintiff’s 26 personal property, to include two 16 oz tumbler cups.1 27 //// 28 1 III. Discussion 2 A. Legal Standard 3 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous 4 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 5 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 6 1915(g), a non-merits related screening device which precludes prisoners with three or more 7 “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious 8 physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 9 2007). The statute provides that “[i]n no event shall a prisoner bring a civil action … under this 10 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 11 facility, brought an action or appeal in a court of the United States that was dismissed on the 12 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 13 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 14 B. Analysis 15 Plaintiff has neither paid the filing fee for this action nor requested leave to proceed in 16 forma pauperis pursuant to 28 U.S.C. § 1915. Review of court records reveals that on at least 17 three occasions lawsuits filed by the plaintiff have been dismissed on the grounds that they were 18 frivolous or malicious or failed to state a claim upon which relief may be granted: 19 (1) Ripple and Harris v. Gomez, Case No. 1:96-cv-05284-REC-SMS (E.D. Cal.) 20 (dismissed on April 30, 1996, as frivolous); 21 (2) Harris v. Ripple, Case No. 1:97-cv-05186-REC-HGB (E.D. Cal.) (dismissed on July 22 30, 2017, as frivolous); 23 (3) Harris v. Coyle, Case No. 1:97-cv-05508-AWI-DLB (E.D. Cal.) (dismissed on January 24 21, 1999, as frivolous, malicious, and failure to state a claim); 25 (4) Harris v. Glass, Case No. 2:00-cv-00937-DFL-DAD (E.D. Cal.) (dismissed on August 26 17, 2000, for failure to state a claim); 27 (5) Harris v. Edmonds, Case No. 1:00-cv-05857-OWW-LJO (E.D. Cal.) (dismissed on 28 November 27, 2000, for failure to state a claim); 1 (6) Harris v. Edmonds, Case No. 1:00-cv-07160-REC-SMS (E.D. Cal.) (dismissed on 2 May 28, 2012 for failure to state a claim); and 3 (7) Harris v. Pliler, Case No. 2:01-cv-01125-WBS-DAD (E.D. Cal.) (dismissed on March 4 15, 2012, for failure to state a claim). 5 Therefore, Plaintiff is not entitled to proceed in forma pauperis, even had he filed a motion to do 6 so. In acknowledgement of his three-strike status, plaintiff contends that his allegations regarding 7 the confiscation of his personal property fall within the imminent danger exception. This 8 exception, which would allow him to proceed in this action without prepayment of the filing fee, 9 requires plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and 10 which turns on the conditions he faced at the time he filed his complaint on July 26, 2019. 11 Andrews, 493 F.3d at 1053-1056. Conditions which posed imminent danger to plaintiff at some 12 earlier time are immaterial, as are any subsequent conditions. Id. at 1053. While the injury is 13 merely procedural rather than a merits-based review of the claims, the allegations of imminent 14 danger must still be plausible. Id. at 1055. 15 The Court finds that plaintiff’s complaint allegations do not meet the imminent danger 16 exception. Andrews, 493 F.3d at 1053. Plaintiff has not shown that he is at risk of any serious 17 physical injury. Rather, plaintiff contends that some of his personal property, to include two 16ox 18 tumblers, were confiscated by Sergeant Torres. Plaintiff’s factual allegations do not allege 19 imminent danger of serious physical injury. Accordingly, plaintiff is ineligible to proceed in 20 forma pauperis in this action, and he should be required to pre-pay the $400 filing fee to proceed 21 in this case. 22 IV. Conclusion 23 Based on the foregoing, the Court ORDERS the Clerk of Court to assign a District Judge to 24 this action; and 25 The Court RECOMMENDS that plaintiff be required to pay the $400 filing fee. 26 These Findings and Recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after 28 being served with these Findings and Recommendations, Plaintiff may file written objections with 1 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 3 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 4 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: February 3, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28