(PC) Crump v. O'Campo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE CRUMP, No. 2: 20-cv-2343 JAM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 A. O’CAMPO, 15 Defendant. 16 17 Plaintiff, a state prisoner, proceeds without counsel and with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendant’s motion to revoke plaintiff’s in 19 forma pauperis status pursuant to 28 U.S.C. § 1915(g). (ECF No. 38.) For the reasons stated 20 herein, the undersigned recommends that defendant’s motion be granted. 21 Background 22 Following allegedly conflicting responses as to whether defendant O’Campo would renew 23 plaintiff’s single cell chrono, plaintiff filed health care grievances against O’Campo based on her 24 revoking his single cell status. In retaliation for such grievances, defendant O’Campo allegedly 25 threatened to house plaintiff with a gang member, then, through “intimidation, threats of harm 26 and fear,” told plaintiff that O’Campo “would reduce [plaintiff’s] mental health level of care from 27 the Enhanced Outpatient Program to the C.C.M.S.” level of care, and then did so. (ECF No. 5 at 28 //// 1 4.) Plaintiff seeks an order granting him single cell status and a single cell chrono, as well as 2 reinstatement to the EOP level of care, and money damages. 3 Governing Standards 4 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 5 the commencement and prosecution of any suit without prepayment of fees by a person who 6 submits an affidavit indicating that the person is unable to pay such fees. However, a prisoner 7 may not proceed in forma pauperis 8 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 9 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 10 be granted, unless the prisoner is under imminent danger of serious physical injury. 11 12 28 U.S.C. § 1915(g). 13 Such rule, known as the “three strikes rule,” was “designed to filter out the bad claims 14 [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 575 U.S. 15 532, 535 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has “three 16 strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he 17 meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 18 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 19 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 20 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 21 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 22 Discussion 23 In her motion to revoke, defendant argues that plaintiff had at least three prior actions 24 dismissed because they failed to state a claim, or were frivolous or malicious. The undersigned 25 discusses these cases herein. 26 In eight cases filed by plaintiff in the Central District of California, plaintiff’s claims were 27 determined to be “[l]egally and/or factually patently frivolous,” and his request to proceed in 28 forma pauperis was denied. Crump v. CDC Board Of Prison Terms, Case No. CV-07-2204 1 (FFM) (C.D. Cal. Apr. 18, 2007); Crump v. Vizard, Case No. CV-07-905 (FFM) (C.D. Cal. Feb. 2 16, 2007); Crump v. Vizard, Case No. CV-07-907 (C.D. Cal. Feb. 16, 2007); Crump v. CDC & 3 Board of [Parole] Hearings, Case No. 07-568 (FFM) (C.D. Cal. Feb. 15, 2007); Crump v. 4 California Dept. of Corrections, Case No. CV-07-22 (FFM) (C.D. Cal. Jan. 24, 2007); Crump v. 5 Langley, Case No. CV-06-4965 (FFM) (C.D. Cal. Jan. 5, 2007); Crump v. California Dept. of 6 Corrections, Case No. CV-06-7883 (FFM) (C.D. Cal. Jan. 5, 2007); and Crump v. California 7 Dept. of Corrections, Case No. CV06-6233 (FFM) (C.D. Cal. Oct. 19, 2006).1 (ECF No. 51-2 at 8 36, 40, 42, 44, 46, 48, 52, 56.) 9 Based on the above cases, in Crump v. Dr. Fritter, Case No. CV 15-6041 VBF (FFM) 10 (C.D. Cal. Feb. 2, 2016), the magistrate judge found that plaintiff had sustained at least three 11 strikes under 28 U.S.C. § 1915(g), and thus was ineligible to proceed in forma pauperis; the 12 district court adopted the recommendations and revoked plaintiff’s in forma pauperis status on 13 April 22, 2016. (ECF No. 51-2 at 15-18.) The case was dismissed on June 10, 2016, for lack of 14 prosecution and failure to pay the entire filing fee. Crump v. Dr. Fritter, No. CV 15-6041 (ECF 15 No. 57). The Central District again found plaintiff was three strikes barred in Crump v. 16 Asuncion, Case No. 2:16-cv-6915 (C.D. Cal. Sept. 19, 2016). (ECF No. 51-2 at 5-7.) 17 Based on the above cases, defendant has shown that prior to filing this action, plaintiff 18 sustained at least three strikes under 28 U.S.C. § 1915(g). 19 In opposition, plaintiff concedes that he was a prolific filer in the Central District, but 20 argues that the current action is the only action he has filed in the Eastern District, and therefore 21 this court should not consider his litigation history in the Central District.2 Plaintiff also argues 22 //// 23 24 1 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both 25 within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation omitted). Thus, defendant’s request for judicial notice (ECF 26 No. 51-2) is granted. 27 2 Plaintiff filed two documents entitled “Motion for Reconsideration,” which are essentially 28 identical. The court construes such filings as plaintiff’s opposition to the motion to revoke. 1 that courts in the Central District erred in finding plaintiff had sustained three strikes under 28 2 U.S.C. § 1915(g). 3 Plaintiff fails to demonstrate that he has not sustained three strikes as defined in 28 U.S.C. 4 § 1915(g), and his arguments lack merit. First, as set forth above, the governing statute provides 5 that prisoners may not proceed in forma pauperis where the prisoner “has, on 3 or more prior 6 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 7 the United States that was dismissed on the grounds that it is frivolous, malicious, or for failure to 8 state a claim.” 28 U.S.C. § 1915(g). Thus, there is no distinction based on where in the United 9 States the prisoner files suit. Second, if plaintiff wanted to challenge the decisions issued by 10 courts in the Central District of California, he was required to do so in the specific case in which 11 the order issued. For example, plaintiff could file a motion for reconsideration of the particular 12 order, or he could file a notice of appeal in the case in which the challenged order issued. See 13 Fed. R. Civ. P. 59(e); Fed. R. App. P. 4. 14 Because defendant demonstrates that plaintiff sustained at least three strikes under 28 15 U.S.C. § 1915(g), plaintiff may not proceed in forma pauperis in this action unless plaintiff 16 demonstrates that at the time he filed the instant action, he was “under imminent danger of serious 17 physical injury.” 28 U.S.C. § 1915(g). 18 Imminent Danger 19 The availability of the imminent danger exception turns on the conditions a prisoner faced 20 at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 21 493 F.3d 1047, 1053 (9th Cir. 2007). Imminent danger of serious physical injury must be a real, 22 present threat, not merely speculative or hypothetical. To meet this exception, the complaint of a 23 “three-strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of 24 serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 25 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 26 Courts have stressed that allegations of imminent danger must be supported by specific, 27 credible allegations of harm. McNeil v. United States, 2006 WL 581081 (W.D. Wash. Mar. 8, 28 2006), by allegations showing that the danger faced is “real, proximate, and/or ongoing,” 1 Andrews, 493 F.3d at 1056, and by allegations that are not speculative, Brown v. Newsom, 2019 2 WL 2387762, at *1 (E.D. Cal. June 6, 2019). Plaintiff must have shown that he faced a “genuine 3 emergency” and “time [was] pressing.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 4 Plaintiff’s amended complaint does not allege that plaintiff faced imminent danger of 5 serious physical injury. (ECF No. 5.) Rather, plaintiff seeks money damages based on the past 6 conduct of defendant, allegedly retaliating against plaintiff for filing grievances. (ECF No. 5 at 7 5.) As argued by defendant, plaintiff failed to address in his opposition the issue of whether 8 plaintiff faced imminent danger of serious physical injury at the time he filed his pleading. 9 Therefore, plaintiff does not meet the imminent danger exception described in 28 U.S.C. 10 § 1915(g), and may proceed in this action only if he first pays the filing fee. Plaintiff is cautioned 11 that failure to pay the filing fee will result in the dismissal of this action. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Defendant’s request for judicial notice (ECF No. 51-2) is granted; and 14 2. Plaintiff’s motions for reconsideration (ECF Nos. 56 & 57) are construed as plaintiff’s 15 opposition to defendant’s motion to revoke. 16 Further, IT IS RECOMMENDED that: 17 1. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 51) be 18 granted, and plaintiff’s in forma pauperis status (ECF No. 10) be revoked; 19 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 6) be denied; and 20 3. Plaintiff be ordered to pay the $402.00 filing fee within thirty days of any order by the 21 district court adopting these findings and recommendations. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 27 objections shall be filed and served within fourteen days after service of the objections. The 28 //// 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: August 27, 2021 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 4 ferum2343.mtd.1915 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28