(PC) Wilkins v. Macomber ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, No. 2:16-CV-0475-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is defendants’ motion to revoke plaintiff’s in forma 19 pauperis status (ECF No. 33) pursuant to 28 U.S.C. § 1915(g). For the reasons stated herein, the 20 Court recommends that defendants’ motion be denied. 21 Title 28 U.S.C. § 1915 permits any court of the United States to authorize the 22 commencement and prosecution of any suit without prepayment of fees by a person who submits 23 an affidavit indicating that person is unable to pay such fees. Defendants request the Court 24 revoke plaintiff’s in forma pauperis status in accordance with the “three strikes rule,” which 25 provides: 26 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more 27 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the 28 grounds that it is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 2 28 U.S.C. § 1915(g). 3 4 When a prisoner plaintiff has had three or more prior actions dismissed for one of 5 the reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma 6 pauperis unless the imminent danger exception applies. Dismissals for failure to exhaust 7 available administrative remedies generally do not count as “strikes” unless the failure to exhaust 8 is clear on the face of the complaint. See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). 9 Dismissed habeas petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 10 F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a 11 disguised civil rights action, the district court may conclude that it counts as a “strike.” See id. at 12 n.12. 13 According to the Ninth Circuit, the imminent danger exception to the three strikes 14 rule applies at the initiation of the suit. See Andrews v. Cervantes, 493 F.3d 1047, 1055-7 (9th 15 Cir. 2007) (“[T]he [three strikes rule] exception applies if . . . the prisoner faced ‘imminent 16 danger of serious physical injury at the time of filing.’”). In the original complaint, plaintiff 17 alleged defendants violated his Eighth Amendment rights by housing him in a cell with unsafe 18 conditions, including a bunk bed without a ladder and a dangerous cellmate. ECF No. 1 at 4-7. 19 At the time plaintiff initiated the suit, he sufficiently alleged that he was under imminent danger 20 of serious physical injury, and therefore plaintiff is exempt from the “three strikes rule” under § 21 1915(g). 22 Additionally, Andrews also holds that “a prisoner who alleges that prison officials 23 continue with a practice that has injured him . . . meet[s] the imminence prong of the three-strikes 24 exception.” 493 F.3d at 1056-7. In the present case, plaintiff had sustained serious injury in 25 December 2015 when plaintiff’s cellmate landed on plaintiff while trying to leave the top bunk. 26 See ECF No. 1 at 5. Plaintiff was told by a doctor that his shoulder might require surgery, and 27 plaintiff continued to live under the same conditions afterwards, through filing the complaint. 28 See id. Plaintiff’s past injury and continued living in the unsafe conditions that led to injury meet wOASe 2 LUT INVINS MYIEUI OOID eee TP Yt VM VI 1 | the “ongoing danger” standard that also substantiates the exception to the three strikes rule. 2 Defendants seek to revoke plaintiffs in forma pauperis status based on the second 3 | amended complaint failing to allege plaintiff was still in imminent danger of serious physical 4 | injury. ECF No. 33-1 at 1. Defendants also argue that by the time plaintiff filed his second 5 || amended complaint, he was imprisoned at a different facility from the one where the alleged 6 | unconstitutional conditions existed. Id. at 21n.1. Defendants attempt to reframe 28 U.S.C. 7 | § 1915’s applicability away from the initiation of the suit to the filing of plaintiff's second 8 || amended complaint instead. Since plaintiff sufficiently alleged that he was under imminent 9 | danger of serious physical injury when he initiated the suit, the “three strikes rule” does not apply 10 | to revoke his in forma pauperis status. 11 Based on the foregoing, the undersigned recommends that defendants’ motion to 12 | revoke plaintiff's in forma pauperis statues (ECF No. 33) be denied. 13 These finding and recommendations are submitted to the United States District 14 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 15 | days after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 | objections shall be filed and served within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 | appeal the District Court’s order. Martinez v. YIst, 951, F.2d 1153 (9th Cir. 1991). 21 22 Dated: July 22, 2020 Sx