(PC) Ray v. Sullivan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VINCENT RAY, JR., No. 1:20-cv-01699-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED 13 v. IN FORMA PAUPERIS AND THE CASE BE DISMISSED WITHOUT PREJUDICE1 14 WILLIAM JOE SULLIVAN, et al., OBJECTIONS DUE WITHIN THIRTY DAYS 15 Defendants. (Doc. No. 2) 16 17 18 Plaintiff Edward Vincent Ray, Jr., a state prisoner, is proceeding pro se on his civil rights 19 complaint filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff accompanied the filing of 20 his complaint with a motion to proceed in forma pauperis (“IFP”). (Doc. No. 2). For the reasons 21 set forth herein, the court recommends plaintiff’s motion to proceed IFP under 28 U.S.C. § 22 1915(g) be denied because plaintiff has had at least three dismissals that constitute strikes and he 23 has not established he meets the imminent danger exception. The court further recommends the 24 case be dismissed without prejudice if plaintiff fails to pay the filing fee before the objection 25 period expires. 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 28 1 I. BACKGROUND AND FACTS 2 Plaintiff is incarcerated at California Correctional Institution (CCI). His complaint, which 3 names the warden, three correctional officers, and the California Department of Corrections and 4 Rehabilitation (CDCR) as defendants, alleges due process violations and violations of CDCR’s 5 regulations stemming from plaintiff’s transfer within CCI to a “more restrictive prison setting” so 6 officials could facilitate social distancing amid the ongoing COVID-19 pandemic. (Doc. No.1 at 7 8). Plaintiff states the defendants “overreacted” to COVID-19 and based on “directives” as 8 opposed to “laws” implemented various restrictions and transfers which has resulted in his loss of 9 certain liberties. (Id. at 8-12). Plaintiff claims the restrictions have caused him mental anguish 10 and loss of sleep, inter alia. (Id. at 7). Plaintiff acknowledges his three-strike status but argues 11 he should be permitted to proceed IFP because he faces imminent danger because the restrictive 12 conditions of his confinement place him in danger of contracting COVID-19, his new housing 13 unit is dirty and cramped, and he has been threatened by “dangerous inmates.” (Id. at 4-6). 14 II. APPLICABLE LAW 15 The “Three Strikes Rule” states: 16 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 17 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 18 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 19 physical injury. 20 28 U.S.C. § 1915(g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was 21 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 22 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 23 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 24 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 25 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 26 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure 27 to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 28 To determine whether a dismissal counts as a strike, a reviewing court looks to the 1 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 2 1106, 1109 (9th Cir. 2013). For a dismissal to count as a strike, the dismissal had to be on a 3 “prior occasion,” meaning the it occurred before plaintiff initiated the instant case. See § 1915(g). 4 A dismissal counts as a strike when the dismissal of the action was for frivolity, maliciousness, or 5 for failure to state a claim, or an appeal dismissed for the same reasons. Lomax, 140 S. Ct. at 6 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 7 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 8 1759, 1761 (2015) (dismissal that is on appeal counts as a strike during the pendency of the 9 appeal). When a district court disposes of an in forma pauperis complaint requiring the full filing 10 fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 11 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified 12 immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 13 2016). 14 Although not exhaustive, dismissals that do not count as § 1915(g) strikes include: 15 dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the 16 three strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) 17 (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 18 writs of mandamus petitions, the Younger2 abstention doctrine, and Heck v. Humphrey3 generally 19 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 20 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 21 (recognizing some Heck dismissals may count as strikes but noting others do not; and reiterating 22 abstention doctrine dismissals and writs of mandamus do not count as strikes). A dismissal of a 23 claim based on sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 24 (9th Cir. 2019). The Ninth Circuit also does not count cases dismissed for lack of jurisdiction as 25 strikes. Moore v. Maricopa Cty. Sheriff's Off., 657 F.3d 890, 894 (9th Cir. 2011). Finally, the 26 Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason enumerated under 27 2 Younger v. Harris, 401 U.S. 37 (1971). 28 3 Heck v. Humphrey, 512 U.S. 477 (1994). 1 §1915A, then that reason “saves” the dismissal from counting as a strike. Harris v. Harris, 935 2 F.3d 670 (9th Cir. 2019). 3 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 4 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoners 5 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 6 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 7 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 8 liberally to determine whether the allegations of physical injury are plausible. Williams v. 9 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 10 rejected as overly speculative or fanciful. Andrews, 493 F. 3d at 1057, fn. 11. 11 III. ANALYSIS 12 A. Plaintiff Has Three or More Qualifying Strikes 13 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database and 14 a review of the Pacer Database reveals plaintiff has filed at least 67 civil actions or appeals in a 15 court of the United States and has been deemed a three-striker under § 1915(g) by a number of 16 courts prior to filing this lawsuit.4 Although not exhaustive, for purposes of this report and 17 recommendation, each of the following cases are properly deemed qualifying § 1915(g) strikes 18 and each were entered before plaintiff commenced the instant action: 19 20 Date of Order Case Style Disposition Ray v. von Geldern, The district court dismissed 21 October 25, 2012 Case No. 4:12-cv-00315- plaintiff’s complaint which 22 YGR (N.D. Cal.) alleged his personal property was unlawfully seized during 23 a search warrant. The court concluded plaintiff could not 24 proceed because neither “negligent nor intentional 25 deprivation of property states 26 a claim under § 1983 if the 27 4 See http://156.128.26.105/LitigantCase.aspx?PersonID=6929 (National Pro Se Database); http://pacer.usci.uscourts.gov. 28 1 deprivation was, as was alleged here, random and 2 unauthorized.” 3 February 28, 2013 Ray v. von Geldern, The Ninth Circuit dismissed Appeal Case No. 12-17472, plaintiff’s appeal “because we 4 (9th Cir.) also find the appeal is frivolous.” 5 Ray v. Schoo, et al., The district court adopted in January 2, 2014 Case No. 5:10-cv-00942- full findings and 6 VAP-PJW (C.D. Cal.) recommendations which 7 determined plaintiff’s fifth amended complaint alleging 8 Eighth Amendment claims failed to state a claim upon 9 which relief could be granted. The findings and 10 recommendations explicitly 11 stated the dismissal would count as a “strike” against 12 plaintiff. Edward Ray, Jr. v. A. Leal, The Ninth Circuit denied 13 March 14, 2017 et al, plaintiff’s appeal finding it 14 Appeal Case No. 16-16482, “frivolous.” (9th Cir.) 15 This court has previously denied plaintiff’s motion to proceed IFP in other matters 16 because of his three-striker status. See, e.g, Case No. 1:20-cv-01515-AWI-GSA at Doc. No. 12; 17 Case No. 1:19-cv-01561-AWI-SKO at Doc. No. 6. Indeed, plaintiff acknowledges his own three 18 strike status. (Doc. No. 1 at 4). Thus, it is unquestionable that plaintiff has three or more 19 qualifying strikes for purposes of § 1915(g). 20 B. The Imminent Danger Exception Does Not Apply 21 Because plaintiff has three or more qualifying cases, the undersigned next considers 22 whether the allegations in plaintiff’s complaint plausibly states facts to fall within the imminent 23 danger exception. Plaintiff generally alleges he is in imminent danger of contracting Covid-19 24 because he interacts with people not wearing proper personal protective equipment and because 25 his cellmate has a compromised immune system. (Doc. No. 1 at 4). When prisons are making 26 reasonable efforts to combat Covid-19 it suggests an inmate is not in imminent danger of 27 contracting it. Anderson v. Doe, 2020 WL 7651978, at *2 (E.D. Cal. Nov. 19, 2020), report and 28 1 recommendation adopted, 2020 WL 7383644 (E.D. Cal. Dec. 16, 2020), reconsideration denied, 2 2021 WL 22416 (E.D. Cal. Jan. 4, 2021). Here, the complaint alleges plaintiff was transferred 3 within CCI so officials could facilitate social distancing. (Doc. No. 1 at 8). In fact, plaintiff 4 criticizes these measures as an overreaction because they were undertaken when CCI had zero 5 confirmed Covid-19 cases. (Id.). But this suggests CCI was proactive in undertaking steps to 6 minimize inmates’ risk of contracting Covid-19. And while plaintiff expresses a generalized fear 7 to catching Covid-19, he nonetheless acknowledges he is “not at high risk” of catching it. (Doc. 8 No. 1 at 9). Plaintiff also fails to explain how a transfer to a lower security section of CCI will 9 lessen his chances of contracting Covid-19 or describe what personal protective equipment he or 10 others lack. Plaintiff’s conclusory concerns about contracting Covid-19 do not amount to a 11 plausible allegation of imminent danger. 12 Plaintiff next claims he is in imminent danger because CCI’s water contains lead and 13 bacteria and his cell is dusty. (Doc. No. 1 at 4.) In a separate lawsuit filed more than a year prior 14 to the instant action, plaintiff raised the same concerns about the water being contaminated. Ray 15 v. Ribera, 2019 WL 5887193, at *1 (E.D. Cal. Nov. 12, 2019), report and recommendation 16 adopted, 2019 WL 6840153 (E.D. Cal. Dec. 16, 2019). The court determined those claims did 17 not rise to imminent danger because plaintiff “provided no basis” that the water was contaminated 18 and that any risk it posed was speculative, not imminent. (Id.). That plaintiff again raises these 19 allegations suggest that the alleged harm is unrelated to his transfer within CCI. And while 20 plaintiff attributes a cough and sore throat to the dust and water, he provides no medical basis that 21 his generic symptoms are related to these conditions. Nor does plaintiff allege that he sought 22 medical care for his symptoms and was being denied medical care. 23 Plaintiff also claims he is in imminent danger because he has been “threatened” by CCI 24 staff and by fellow inmates due to the facts that he now is being housing with higher level 25 security inmates. (Doc. No. 1 at 5-6). Plaintiff alleges an inmate made a veiled threat that he 26 would be beat up if he “snitched” on fellow inmates, and that he has been threatened with needles 27 supposedly containing hepatitis and AIDS. (Doc. No. 1 at 5). The only remark he attributes to 28 CCI staff is that he was told inmates like him are “crybabies” for “always filing grievances.” 1 (Id.). Even if true, it is difficult to construe this statement as threatening, let alone portending 2 imminent danger. The other comments purportedly made by unidentified fellow inmates also do 3 not demonstrate imminent danger. Allegations that are “[o]verly speculative and fanciful … do 4 not plausibly show imminent danger.” Stine v. Fed. Bureau of Prisons, 2015 WL 5255377, at *6 5 (E.D. Cal. Sept. 9, 2015). Vague “verbal threats of physical harm to [ ] health and safety” are 6 insufficient “to demonstrate imminent danger of serious physical injury.” Cruz v. Pfeiffer, 2021 7 WL 289408, at *2 (E.D. Cal. Jan. 28, 2021). Plaintiff does not identify which inmate made the 8 alleged threats or that he reported the threat to correctional officials, and they refused to take any 9 action. While a plaintiff “need not wait” until the event of which he alleges occurs, see e.g. 10 Helling v. McKinney, 509 U.S. 25, 33-34 (1993), he must provide some factual specificity to 11 support his allegations. Accordingly, without any factual basis these threats are too speculative 12 and vague to demonstrate imminent danger. Based on the foregoing, the undersigned finds no 13 plausible allegations that plaintiff is in imminent danger to avail himself of the imminent danger 14 exception to the three-strike bar. 15 C. Plaintiff Must Pay the Filing Fee During Objection Period or Face Dismissal 16 The undersigned further recommends that if plaintiff does not pay the full filing fee during 17 the thirty-day period for filing his objections, that the district court dismiss the case, without 18 prejudice upon its adoption of the Findings and Recommendation. Considering the Amended 19 Standing Order in Light of Judicial Emergency in the Eastern District of California, this court has 20 an enormous backlog of civil cases and need not permit a litigant all too familiar with the Three 21 Strikes Rule to repeatedly file cases that are frivolous, malicious, or fail to a state claim, and are 22 precisely those cases the Prison Litigation Reform Act was enacted to curtail. See also Blackwell 23 v. Jenkins, Case No. 2021 WL 825747, Case no. 2:19-cv-442-TLN-DB (E.D. Ca. March 4 ,2021) 24 (recommending denial of ifp motion and dismissal without prejudice, unless prisoner-plaintiff 25 pays the full filing fee by the deadline for filing objections to the findings and recommendations); 26 see also Dupree v. Gamboa, Case No. 1:19-cv-953-LJO-GSA, 2019 WL (E.D. Cal. 2019) 27 (denying in forma pauperis motion and dismissing case without waiting thirty days to permit 28 plaintiff additional time to pay the filing fee). Providing plaintiff with thirty days, as opposed to 1 | the statutory fourteen-day period, to both object and pay the filing fee, provides plaintiff as a pro 2 | se prisoner litigant sufficient notice and an opportunity to prosecute this action while 3 | simultaneously enabling the court an ability to more efficiently manage its overburdened docket. 4 Accordingly, it is RECOMMENDED: 5 Plaintiff's motion for leave to proceed in forma pauperis (Doc. No. 2) be denied under 28 6 | U.S.C. § 1915(g) and, if plaintiff does not pay the full filing fee by the thirty-day (30) objection 7 | deadline, that the case be dismissed without prejudice. 8 NOTICE TO PARTIES 9 These findings and recommendations will be submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 11 | days after being served with these findings and recommendations, a party may file written 12 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” Parties are advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. Dated: April 27, 2021 law Nh. fareh Base □□□ 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28