(PC) Merino v. Gomez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2: 21-cv-0572 JAM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GOMEZ, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to revoke plaintiff’s in 20 forma pauperis status pursuant to 28 U.S.C. § 1915(g). (ECF No. 31.) For the reasons stated 21 herein, the undersigned recommends that defendants’ motion be granted. 22 Background 23 Plaintiff filed the original complaint on March 29, 2021. (ECF No. 1). Plaintiff named as 24 defendants California State Prison-Sacramento (“CSP-Sac”) Correctional Officers Gomez and 25 Navarro and CSP-Sac Warden Lynch. (ECF No. 1). Plaintiff alleged that on October 23, 2020, 26 his cellmate attacked him. (Id. at 3.) As a result of the attack, plaintiff suffered a global rupture 27 to his left eye causing permanent blindness. (Id. at 3-4.) 28 //// 1 Plaintiff alleged that in the days leading up to the attack, he told defendants Gomez and 2 Navarro that his safety was in danger if he continued to be housed with his cellmate. (Id. at 4.) 3 Plaintiff alleged that he told defendants Gomez and Navarro that his cellmate had been physically 4 and verbally abusive toward him. (Id. at 5.) Defendants Gomez and Navarro did not move 5 plaintiff to a new cell. (Id. at 4.) Plaintiff alleged that defendants Gomez and Navarro 6 disregarded his safety concerns regarding his cellmate in violation of the Eighth Amendment. 7 (Id.) 8 Plaintiff alleged that the actions of defendants Gomez and Navarro are “far from an 9 isolated incident.” (Id. at 5.) Plaintiff alleged that “this type of behavior by officers at CSP- 10 Sacramento is normal and occurs on a regular basis.” (Id.) Plaintiff alleged that defendant Lynch 11 cultivated and promoted a policy permitting CSP-Sac correctional officers to ignore inmate safety 12 concerns in violation of the Eighth Amendment. (Id. at 5.) 13 On April 2, 2021, the undersigned ordered service of defendants Gomez, Navarro and 14 Lynch. (ECF No. 6.) 15 On July 19, 2021, defendants filed a motion to dismiss the claims against defendant Lynch 16 pursuant to Federal Rule of Civil Procedure 12(b)(6) (combined with the pending motion to 17 revoke plaintiff’s in forma pauperis status). (ECF No. 31.) On August 17, 2021, the undersigned 18 granted defendants’ motion to dismiss with leave to file an amended complaint within thirty days. 19 (ECF No. 37.) The undersigned found that plaintiff’s claim alleging that defendant Lynch 20 cultivated and promoted a policy that permitted CSP-Sac correctional officers to ignore inmate 21 safety concerns was vague and conclusory. (Id. at 4.) The undersigned found that plaintiff’s 22 claim alleging that CSP-Sac correctional officers routinely disregarded inmate safety concerns 23 was not supported by specific facts. (Id.) 24 In response to the August 17, 2021 order, plaintiff filed two separate pleadings. (ECF 25 Nos. 41, 42.) One pleading contains plaintiff’s previous claims against defendants Gomez and 26 Navarro. (ECF No. 42.) The other pleading, titled “Motion to Amend,” contains plaintiff’s 27 claims against defendant Lynch. (ECF No. 41.) Plaintiff alleges that defendant Lynch is liable 28 for the misconduct because he knows and is very aware of the staff misconduct and wrong 1 behavior. (Id. at 1.) Plaintiff alleges that defendant Lynch read plaintiff’s 602 grievance prior to 2 the incident and knew that plaintiff was under imminent danger of attack by his cellmate. (Id.) 3 Plaintiff alleges that defendant Lynch “might not cultivate and promote a policy permitting CSP- 4 Sac C/Os to behave the way they do behave, but he let the/his officers to behave the wrong way 5 they do behave…” (Id. at 2.) Plaintiff also alleges, “I can list so many many incidents” that 6 happened at CSP-Sac that support his claim of correctional officers routinely disregarding inmate 7 safety. (Id. at 3.) However, plaintiff does not describe any of these incidents. (Id.) 8 Discussion—Motion to Revoke Plaintiff’s In Forma Pauperis Status 9 Does Plaintiff Have Three Prior Strikes Pursuant to 28 U.S.C. § 1915(g)? 10 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 11 the commencement and prosecution of any suit without prepayment of fees by a person who 12 submits an affidavit indicating that the person is unable to pay such fees. However, a prisoner 13 may not proceed in forma pauperis 14 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 15 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 16 be granted, unless the prisoner is under imminent danger of serious physical injury. 17 18 28 U.S.C. § 1915(g). 19 Such rule, known as the “three strikes rule,” was “designed to filter out the bad claims 20 [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 575 U.S. 21 532, 535 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has “three 22 strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he 23 meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 24 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 25 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 26 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 27 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 28 //// 1 When courts “review a dismissal to determine whether it counts as a strike, the style of the 2 dismissal or the procedural posture is immaterial. Instead, the central question is whether the 3 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 4 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 638 (4th 5 Cir. 2013)). 6 Defendants contend that plaintiff has three prior actions dismissed because they failed to 7 state a claim, or were frivolous or malicious. The undersigned discusses these cases herein. 8 Defendants contend that case no. 5:10-cv-1674 RMW (N.D. Cal.) is a strike pursuant to 9 28 U.S.C. § 1915(g). Defendants provided the court with the August 2, 2010 order by the United 10 States District Court for the Northern District of California dismissing case 10-1674 for failure to 11 state a claim. (ECF No. 32 at 13-15.) 12 Defendants contend that case no. 5:11-cv-5739 RMW (N.D. Cal.) is a strike pursuant to 13 28 U.S.C. § 1915(g). Defendants provided the court with the March 6, 2012 order by the United 14 States District Court for the Northern District of California dismissing case 11-5739 for failure to 15 state a claim. (Id. at 45-47.) 16 Defendants contend that case no. 5:10-cv-5393 RMW (N.D. Cal.) is a strike pursuant to 17 28 U.S.C. § 1915(g). Defendants provided the court with the February 15, 2011 order by the 18 United States District Court for the Northern District of California dismissing plaintiff’s 19 complaint in case 10-cv-5393 for failure to state a claim with leave to amend. (Id. at 29-32.) 20 Defendants provided the court with the April 21, 2011 order by the Northern District dismissing 21 case 10-cv-5393 after plaintiff failed to file an amended complaint. (Id. at 33.) See Harris v. 22 Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) ((“[W]hen (1) a district court dismisses a 23 complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) 24 the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under 25 § 1915(g).”). 26 In the pending motion, defendants also present evidence demonstrating that plaintiff filed 27 the three lawsuits discussed above and that he was incarcerated when he filed them. The plaintiff 28 in the three cases cited above identifies himself as Francisco Merino. (ECF No. 32 at 9, 19, 38.) 1 In case 10-cv-1674, plaintiff indicated that he was housed in the San Mateo County Jail when he 2 filed his complaint on April 19, 2010. (Id. at 7, 9.) In case 10-cv-5393, plaintiff indicated that he 3 was housed in the San Mateo County Jail when he filed his complaint on November 29, 2010. 4 (Id. at 18, 19.) In case 11-cv-5739, plaintiff indicated that he was housed at the San Mateo 5 County Jail when he filed his complaint on November 30, 2011. (Id. at 38.) However, the 6 docket sheet from case 11-cv-5739 lists plaintiff’s address as Salinas Valley State Prison 7 (“SVSP”). (Id. at 36.) 8 Plaintiff was incarcerated in the San Mateo County Jail from January 5, 2010, until 9 September 16, 2011. (Id. at 51-52.) On September 16, 2011, plaintiff was transferred into the 10 custody of the California Department of Corrections and Rehabilitation (“CDCR”). (Id. at 54.) 11 Therefore, plaintiff was incarcerated in San Mateo County Jail when he filed cases 10-cv-1674 12 and 10-cv-5393. Plaintiff was incarcerated in SVSP when he filed case 11-cv-5739. 13 After reviewing the evidence cited above, the undersigned is confident that plaintiff filed 14 the three actions discussed above and that plaintiff was incarcerated when he filed these actions. 15 The undersigned further observes that plaintiff’s handwriting and signature in the instant action 16 appear to be the same handwriting and signature in the three cases discussed above. 17 Accordingly, the undersigned finds that the three cases discussed above, i.e., case nos. 10- 18 cv-1674, 10-cv-5393 and 11-cv-5739, are strikes pursuant to 28 U.S.C. § 1915(g). 19 The undersigned observes that in a pleading filed September 10, 2021, plaintiff alleges 20 that he has only two strikes. (ECF No. 43.) Attached to this pleading is a request for interview 21 form addressed to CCI Counselor in which plaintiff asks, “How many strikes do I have?” (Id. at 22 2.) The responses states, “2.” (Id.) The response to plaintiff’s request does not appear to address 23 plaintiff’s strikes pursuant to 28 U.S.C. § 1915(g). Instead, this response may be addressing 24 plaintiff’s strikes pursuant to California’s Three Strikes law. 25 Imminent Danger Exception 26 Because plaintiff sustained three strikes, plaintiff is precluded from proceeding in forma 27 pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. 28 § 1915(g). The availability of the imminent danger exception turns on the conditions a prisoner 1 faced at the time the complaint was filed, not at some earlier or later time. See Andrews, 493 2 F.3d at 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be 3 rejected as overly speculative or fanciful.” Id. at 1057 n.11. “Imminent danger of serious 4 physical injury must be a real, present threat, not merely speculative or hypothetical.” Blackman 5 v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under 6 § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or 7 a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 8 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 9 are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the 10 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 11 and “a threat...is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 12 Imminent danger is measured at the commencement of the action, and is not reevaluated 13 based on allegations in an amended complaint. See, e.g., Bradford v. Usher, 2019 WL 4316899, 14 at *4 (E.D. Cal. Sept. 12, 2019) (“imminent danger for purposes of § 1915(g) is to be measured at 15 the time of the commencement of the action and that a determination that the imminent danger 16 exception has been satisfied need not be subsequently reexamined until and unless an appeal is 17 filed.”); Simmons v. Wuerth, 2020 WL 1621368, at *1 (E.D. Cal. Apr. 2, 2020) (Section 18 1915(g)’s imminent danger “exception applies if the complaint makes a plausible allegation that 19 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”) (citing 20 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (emphasis in original)). 21 In the pending motion, defendants argue that plaintiff does not meet the imminent danger 22 exception because there are no facts plausibly suggesting that plaintiff was in imminent danger of 23 serious physical injury at the time he filed his complaint on March 29, 2021. Defendants contend 24 that plaintiff’s complaint concerns a single prior assault by a prior cellmate that occurred in 25 October 2020. Exhibits attached to the complaint indicate that plaintiff was granted single cell 26 status on October 29, 2020, based on the incident. (See ECF No. 1 at 15.) Accordingly, based on 27 the granting of single cell status, defendants argue that there is no further risk of in-cell assault by 28 the same inmate or any current cellmate, as plaintiff does not have one. Defendants further argue 1 that plaintiff does not allege that he is under further threat of assault. 2 Plaintiff’s allegations in the complaint do not demonstrate that he faced imminent danger 3 of serious physical injury at the time he filed the complaint, including a risk of ongoing danger. 4 As observed by defendants, an exhibit attached to the complaint demonstrates that plaintiff was 5 granted single cell status on October 29, 2020. It is not clear whether plaintiff still had single cell 6 status when he filed the complaint on March 29, 2021. However, plaintiff’s failure to allege 7 ongoing danger and his failure to request injunctive relief (see ECF No. 1 at 6) suggest that he did 8 not face a further risk of in-cell assault from the same inmate or any current cellmate at the time 9 he filed his complaint. Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999) (finding no 10 ongoing danger where plaintiff had been placed in administrative segregation following physical 11 assaults by fellow inmates and before he filed his complaint); see also Abdul-Akbar v. McKelvie, 12 239 F.3d 307, 315 (3rd Cir. 2001) (citing Webster’s II New Riverside University Dictionary 611 13 (1984) (“Imminent” dangers are those dangers which are about to occur at any moment or are 14 impending.”). 15 The undersigned also finds that the allegations in the amended complaint against 16 defendant Lynch (see ECF No. 41) do not demonstrate that plaintiff faced imminent danger of 17 serious physical injury at the time he filed the complaint. Plaintiff’s allegations in the amended 18 complaint regarding defendant Lynch’s alleged policy permitting CSP-Sac correctional officers to 19 disregard inmate safety concerns are vague and conclusory, as they were in the original 20 complaint. 21 Finally, plaintiff filed three pleadings in response to the pending motion arguing, in 22 essence, that he faced an imminent threat of serious physical harm on or around the time he filed 23 the complaint based on defendant Gomez’s retaliation and threats of retaliation for filing the 24 instant action. (ECF Nos. 39, 40, 44.) Plaintiff alleges that during the time he was preparing this 25 action “and thereafter,” defendant Gomez hit plaintiff two times in the face with closed fists. 26 (ECF No. 39 at 2.) Plaintiff alleges that defendant Gomez came to his cell and said, “You told on 27 me?” (Id. at 3.) Plaintiff alleges that defendant did this for 6-7 days in a row and hit plaintiff in 28 the face on two occasions. (Id.) Plaintiff alleges that this retaliation took place while plaintiff 1 was writing his complaint. (Id.) 2 “[T]he complaint of a three-strikes litigant must reveal a nexus between the imminent 3 danger it alleges and the claims it asserts, in order for the litigant to qualify for the ‘imminent 4 danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will consider (1) 5 whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly 6 traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial 7 outcome would redress that injury. The three-strikes litigant must meet both requirements in 8 order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 WL 5255377, at *3 9 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009)). 10 A favorable judgment in plaintiff’s favor, i.e., granting plaintiff’s request for money 11 damages based on a finding that defendants failed to protect plaintiff from his cellmate on 12 October 23, 2020, would not resolve the alleged retaliatory threats and assaults by defendant 13 Gomez. See Cramer v. Jones, 2020 WL 402018, at *3 (E.D. Cal. Jan. 24, 2020), findings and 14 recommendations adopted March 30, 2020 (“The allegations regarding any retaliation by 15 Defendants for filing this case do not have a nexus to his claims: Plaintiff does not allege, for 16 example, that Defendants’ theft or acts of impoundment have put him in imminent danger. Put 17 another way, Plaintiff has not shown that he is in imminent danger that would be redressed by this 18 lawsuit.”); see also Jordanoff v. Torxel, 2020 WL 2992198, at *2 (W.D. Okl. June 4, 2020) 19 (“However, a favorable judgment from the Court—granting Plaintiff $135,000.00 in monetary 20 damages, restating his phone and commissary privileges, and providing injunctive relief against 21 medical staff…would not resolve the threats he received from fellow inmates.”). 22 Accordingly, plaintiff’s claim that defendant Gomez retaliated against him for filing this 23 action does not give rise to the imminent danger exception because a favorable judicial outcome 24 would not redress the injuries caused by defendant Gomez’s alleged retaliation.1 25 For the reasons discussed above, the undersigned finds that plaintiff does not meet the 26 imminent danger exception contained in 28 U.S.C. § 1915(g). Accordingly, defendants’ motion 27 1 Plaintiff did not include the allegations regarding defendant Gomez’s alleged retaliation in 28 either the original complaint or amended complaint. (ECF Nos. 1, 2.) 1 to revoke plaintiff’s in forma pauperis affidavit should be granted. 2 Requests for Appointment of Counsel 3 Plaintiff filed two requests for the appointment of counsel. District courts lack authority 4 to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 5 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 6 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 7 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 8 1990). When determining whether “exceptional circumstances” exist, the court must consider 9 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 10 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 11 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 12 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 13 common to most prisoners, such as lack of legal education and limited law library access, do not 14 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 16 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 17 time. 18 Conclusion 19 For the reasons discussed above, the undersigned recommends that defendants’ motion to 20 revoke plaintiff in forma pauperis status be granted. Following resolution of this motion, the 21 undersigned will consider plaintiff’s motion to amend, if appropriate. (ECF Nos. 41, 42.) 22 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for appointment of 23 counsel (ECF No. 38, 45) are denied; and 24 IT IS HEREBY RECOMMENDED that: 25 1. Defendants’ motion to revoke plaintiff’s in forma pauperis status (ECF No. 31) be 26 granted; 27 2. Plaintiff be ordered to pay the $402 filing fee within thirty days of the adoption of 28 these findings and recommendations by the district court. ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 || after being served with these findings and recommendations, any party may file written 4 || objections with the court and serve a copy on all parties. Such a document should be captioned 5 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 || objections shall be filed and served within fourteen days after service of the objections. The 7 || parties are advised that failure to file objections within the specified time may waive the right to 8 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 9 | Dated: October 26, 2021 0 Foci) Aharon 11 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 12 13 14 | MerS72.57 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10