(PC) Henderson v. Welch ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CURTIS LEE HENDERSON, SR., Case No. 1:21-cv-00009-EPG (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO EXCUSE E-FILING 11 v. (ECF NO. 4) 12 WELCH, et al., FINDINGS AND RECOMMENDATIONS, 13 Defendants. RECOMMENDING THAT PLAINTIFF’S APPLICATION TO PROCEED IN 14 FORMA PAUPERIS BE DENIED AND THAT PLAINTIFF BE REQUIRED TO 15 PAY THE $402.00 FILING FEE IN FULL 16 (ECF No. 1) 17 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS 18 ORDER DIRECTING CLERK TO 19 ASSIGN DISTRICT JUDGE 20 I. BACKGROUND 21 Curtis Lee Henderson, Sr. (“Plaintiff”), is a state prisoner proceeding pro se with this 22 civil rights action. Plaintiff filed the complaint commencing this action on January 4, 2021. 23 (ECF No. 2). On that same day Plaintiff filed an application to proceed in forma pauperis. 24 (ECF No. 1).1 25 As the Court finds that Plaintiff had at least three “strikes” prior to filing the action and 26 27 1 Plaintiff also filed a motion to excuse e-filing because the law library has not been open for legal filing due to COVID-19. (ECF No. 4). The Court finds good cause to grant Plaintiff’s motion. Accordingly, Plaintiff 28 will be excused from complying with the standing order regarding procedural rules for electronic submission of prisoner litigation filed by plaintiffs incarcerated at participating penal institutions. 1 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 2 action, the Court will recommend that Plaintiff’s application to proceed in forma pauperis be 3 denied and that Plaintiff be required to pay the $402 filing fee in full if he wants to proceed 4 with the action. 5 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 6 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 7 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 8 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 9 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 10 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 11 under imminent danger of serious physical injury.” 12 In determining whether a case counts as a “strike,” “the reviewing court looks to the 13 dismissing court’s action and the reasons underlying it…. This means that the procedural 14 mechanism or Rule by which the dismissal is accomplished, while informative, is not 15 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 16 See also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (“no ‘particular formalities are 17 necessary for an order that serves as the basis of [an involuntary] dismissal.’”) (quoting 18 Yourish v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir. 1999)) (alteration in original). 19 III. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 20 a. Strikes 21 Plaintiff initiated this action on January 4, 2021. (ECF No. 2). The Court finds that, 22 prior to this date, Plaintiff had at least three cases dismissed that count as “strikes.” 23 The Court takes judicial notice of Henderson v. State of California Department of 24 Corrections and Rehabilitation (“Henderson 1”), E.D. CA, Case No. 1:09-cv-01402, ECF No. 25 10, in which Magistrate Judge Sandra M. Snyder found that Plaintiff had at least three “strikes” 26 prior to filing the action. The action was filed on July 30, 2009. Henderson 1, ECF No. 1. 27 The Court also takes judicial notice of: 1) Henderson v. Hamren, E.D. CA, Case No. 28 1:99-cv-05957, ECF Nos. 41 & 43 (dismissed for failure to state a claim); 2) Henderson v. 1 United States of America, E.D. CA, Case No. 2:08-cv-02383, ECF Nos. 10 & 11 (dismissed for 2 failure to state a claim); 3) Henderson v. Holz, N.D. CA, Case No. 4:07-cv-00909, ECF No. 19 3 (dismissed for failure to state a claim); and 4) Henderson v. Small, E.D. CA, Case No. 1:98-cv- 4 05138, ECF No. 6 (dismissed as frivolous)2. 5 Based on Henderson 1, as well as the actions listed above, the Court finds that Plaintiff 6 had at least three “strikes” prior to filing this action.3 7 b. Imminent Danger 8 As Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is precluded 9 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 10 imminent danger of serious physical injury. The availability of the imminent danger exception 11 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 12 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 13 of serious physical injury must be a real, present threat, not merely speculative or 14 hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To 15 meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing 16 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 17 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague 18 and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 19 F.3d 1226, 1231-32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 (“[C]onclusory 20 assertions” are “insufficient to invoke the exception to § 1915(g)….”). The “imminent danger” 21 exception is available “for genuine emergencies,” where “time is pressing” and “a threat … is 22 real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 23 24 2 The docket entry states that this case was “DISMISSED AS FRIVOLOUS.” Small, ECF No. 6. Additionally, Judge Snyder determined that Small counts as a “strike.” Henderson 1, ECF No. 10, p. 2 n.1. 25 3 It appears that Henderson v. Holz, 9th Cir., Case No. 09-17130, also counts as a “strike.” Under Ninth Circuit case law, it appears that an appeal counts as a strike where an application to proceed in forma pauperis is 26 denied as frivolous by an appellate court and the appeal is later dismissed. See, e.g., Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). And here, Plaintiff’s application to proceed in forma pauperis was denied because the 27 appeal was frivolous, and Plaintiff subsequently voluntarily dismissed the appeal. Holz, ECF Nos. 7, 8, & 9. Thus, it appears that this appeal counts as a “strike.” However, as the Court has already determined that Plaintiff 28 had at least three “strikes” prior to filing this action, the Court need not decide the issue. 1 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 2 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 3 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 4 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 5 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 6 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 7 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 8 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 9 298-99 (2d Cir. 2009)). 10 Because Plaintiff is pro se, in making the imminent danger determination the Court 11 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 12 Nothing in Plaintiff’s complaint suggests that he was in imminent danger of serious 13 physical injury at the time he filed his complaint. 14 Plaintiff’s complaint revolves around allegations that numerous officers have retaliated 15 against him for filing a civil complaint and request for a temporary restraining order. The 16 retaliation has taken the form of cell searches, intermittent withholding of food (including his 17 liquid nutritional supplement), verbal harassment, Plaintiff being issued a Rules Violation 18 Report, and denial of adequate shower time. Additionally, on November 8, 2020, Plaintiff was 19 moved into a COVID-19 infected building, and Plaintiff was infected with COVID-19. 20 Moreover, on or around November 8, 2020, Plaintiff was forced to stand up for count, even 21 though he has a disability. Finally, on one occasion Plaintiff was denied an Americans with 22 Disabilities Act assistant. 23 While some of Plaintiff’s allegations are serious, the question is not whether Plaintiff’s 24 rights were violated, but whether Plaintiff was in imminent danger of serious physical injury at 25 the time he filed his complaint. And here, the Court finds that Plaintiff has not sufficiently 26 alleged that he was. 27 To begin, there are no allegations in Plaintiff’s complaint that sufficiently suggest that 28 any defendant intentionally exposed Plaintiff to COVID-19. Additionally, the allegation 1 regarding exposure to COVID-19 does not appear to show that Plaintiff was in imminent 2 danger at the time he filed his complaint because he was already infected with COVID-19. 3 And, Plaintiff does not allege that he was deprived of needed medical care associated with this 4 diagnosis. 5 Next, the Court turns to whether Plaintiff provided “specific fact allegations of ongoing 6 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 7 serious physical injury.” Martin, 319 F.3d at 1050. Plaintiff may have sufficiently alleged that 8 there was a pattern of misconduct evidencing a likelihood that the intermittent denial of food, 9 the denial of adequate shower time, and the verbal harassment will continue. However, even if 10 he did, there is no indication that any of these conditions caused Plaintiff to be in imminent 11 danger of serious physical injury at the time he filed his complaint. 12 As to Plaintiff’s allegations regarding verbal harassment, there is no indication that this 13 non-physical harassment caused Plaintiff to be in imminent danger of serious physical injury. 14 As to Plaintiff’s allegations regarding denial of adequate shower time, there are no 15 allegations suggesting that the denial of adequate shower time caused Plaintiff to be in 16 imminent danger of serious physical injury.4 17 As to Plaintiff’s allegations of intermittent withholding of food, the prolonged denial of 18 food could cause a prisoner to be in imminent danger of serious physical injury. However, 19 Plaintiff has alleged that he received numerous meals,5 and there are no allegations suggesting 20 that this intermittent denial caused Plaintiff to be in imminent danger of serious physical injury. 21 Additionally, there are no allegations suggesting that the denial of his liquid nutritional 22 supplement caused him to be in imminent danger of serious physical injury. 23 As Plaintiff is a “three-striker” and does not appear to have been in imminent danger 24 when he filed this action, the Court will recommend that Plaintiff’s application to proceed in 25 forma pauperis be denied and that Plaintiff be directed to pay the $402.00 filing fee in full if he 26 27 4 Plaintiff does not appear to allege that, at the time he filed the complaint, he was not being allowed to shower. Instead, he appears to take issue with the fact that he had less than five minutes to shower. (ECF No. 2, 28 pgs. 7 & 8). 5 Plaintiff is not specific, but it appears that Plaintiff received far more meals than he was denied. 1 || wants to proceed with this action. 2 CONCLUSION, RECOMMENDATIONS, AND ORDER 3 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 4 || action. 5 Accordingly, it is HEREBY RECOMMENDED that: 6 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's application to proceed in forma pauperis 7 (ECF No. 1) be DENIED; and 8 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with 9 this action. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 12 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 13 || may file written objections with the Court. The document should be captioned “Objections to 14 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 |) (9th Cir. 1991)). 18 Additionally, IT IS ORDERED that: 19 1. Plaintiff is excused from complying with the standing order regarding 20 procedural rules for electronic submission of prisoner litigation filed by 21 plaintiffs incarcerated at participating penal institutions; and 22 2. The Clerk of Court is directed to assign a district judge to this case. 23 IT IS SO ORDERED. 25 |! Dated: _ January 12, 2021 [Je hoy —— 26 UNITED STATES MAGISTRATE JUDGE 27 28