(PC) Mester v. Malakkla ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORRIS MESTER, No. 2:17-cv-1781 JAM AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 N. MALAKKLA, et al. 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on 19 August 30, 2017. See ECF No. 6. This proceeding was referred to this court by Local Rule 302 20 pursuant to 28 U.S.C. § 636(b)(1). 21 On August 5, 2019, defendants filed a motion to revoke plaintiff’s in forma pauperis 22 status on the grounds that plaintiff is a three-strikes litigant within the meaning of 28 U.S.C. § 23 1915(g). See ECF No. 41. On October 2, 2019, plaintiff filed a motion for sanctions, dismissal 24 or an entry of default. ECF No. 54. For the reasons stated below, the undersigned recommends 25 that defendants’ motion to revoke plaintiff’s in forma pauperis status be granted, and that plaintiff 26 be ordered to pay the filing fee prior to proceeding any further with this action. The undersigned 27 shall also recommend that plaintiff’s motion for sanctions, dismissal or an entry of default be 28 denied as premature. 1 I. APPLICABLE LAW 2 28 U.S.C. § 1915(g) states: 3 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 prior 4 occasions, while incarcerated or detained in any facility, brought an action or 5 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 6 unless the prisoner is under imminent danger of serious physical injury. 7 28 U.S.C. § 1915(g). 8 “It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court 9 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 10 1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be used 11 to deny a prisoner’s in forma pauperis status only when, after careful evaluation of the order 12 dismissing an action, and other relevant information, the district court determines that the action 13 was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 14 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). 15 II. SECTION 1915(G) “STRIKE” CASES 16 Defendants identify three cases of plaintiff’s that were fully adjudicated prior to the filing 17 of the instant action and that constitute strikes under 28 U.S.C. § 1915(g): 18  Mester v. Dickinson, No. 2:09-cv-3307 KJM KJN, (E.D. Cal. Jan. 29, 2013) 19 (“Dickinson”); 20  Mester v. Sacks, No. 07-16841, (9th Cir. Mar. 20, 2008) (“Sacks”), and 21  Mester v. Paramo, No. 13-55501, (9th Cir. May 29, 2013) (“Paramo”).1 22 See ECF No. 41 at 5-6. Defendants argue that because these cases are strikes and because 23 plaintiff did not make a plausible allegation that he faced imminent danger of serious physical 24 injury at the time he filed the instant complaint, plaintiff’s in forma pauperis status should be 25 revoked, and he should be required to pay the filing fee prior to proceeding any further with this 26 action. See id. at 6-9. 27 1 The court takes judicial notice of the court records filed in support of their motion to revoke 28 plaintiff’s in forma pauperis status. 1 III. DISCUSSION 2 A. The Cases Identified by Defendants Constitute Strikes 3 The undersigned has reviewed each of the cases identified by defendants, and it finds as 4 discussed below that each one constitutes a strike within the meaning of Section 1915(g). As a 5 result, plaintiff may not continue to proceed in forma pauperis. Instead, his in forma pauperis 6 status must be revoked, and he must be ordered to pay the filing fee prior to proceeding any 7 further with it. 8 In Dickinson, the court dismissed plaintiff’s complaint for failure to state a claim. See 9 Dickinson, ECF No. 123 at 5-9. A dismissal for failure to state a claim constitutes a strike within 10 the meaning of 28 U.S.C. § 1915(g). Andrews, 398 F.3d at 1121. 11 In Sacks, the Ninth Circuit dismissed plaintiff’s appeal for failure to prosecute. See 12 Sacks, Dkt Entry 7. It is well-settled that when determining whether the dismissal of a case 13 constitutes a strike under Section 1915(g), the reviewing court must look to the dismissing court’s 14 action and the reasons underlying it. Knapp, 738 F.3d at 1109. 15 In Sacks, after acknowledging that the District Court had certified that plaintiff’s appeal 16 was not being brought in good faith and that the lower court had revoked plaintiff’s in forma 17 pauperis status as a result, the Ninth Circuit ordered plaintiff to pay filing fees prior to proceeding 18 with his action on appeal. See Sacks, Dkt Entry 6. A finding that an appeal has not been taken in 19 good faith is the equivalent of a finding of frivolity within the meaning of Section 1915(g). 20 Knapp, 738 F.3d at 1110 (citing Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977)). 21 Therefore, despite the final statement by the Sacks Court that it was dismissing the action for 22 failure to prosecute, pay fees and show cause, the Sacks dismissal also constitutes a strike. See 23 Knapp, 738 F.3d at 1109 (stating procedural mechanism or rule by which dismissal is 24 accomplished, while informative, is not dispositive and encouraging court’s independent 25 assessment of each dismissal). 26 Finally, in Paramo as in Sacks, the Ninth Circuit first noted that the District Court had 27 certified that the appeal was not being taken in good faith and that as a result, plaintiff’s in forma 28 pauperis status had been revoked. See Paramo, Dkt Entry 6. The court also confirmed that 1 plaintiff was not entitled to in forma pauperis status at the appellate level because it had 2 independently found the appeal to be frivolous. See id. As a result, the Paramo Court ordered 3 plaintiff to pay the filing fee and to show cause. See id. When plaintiff failed to pay the filing fee 4 as ordered, the Ninth Circuit had the matter dismissed because plaintiff had failed to respond to a 5 court order. Specifically, plaintiff had failed to pay the filing fee and had failed to show cause. 6 See Paramo, Dkt Entries 6, 9. This dismissal counts as a strike because of the several predicate 7 findings of bad faith and frivolity. See generally Knapp, 738 F.3d at 1109-10. 8 B. Plaintiff Failed to Allege Imminent Danger 9 In light of the above, plaintiff is precluded from proceeding in forma pauperis in this 10 action unless he was “under imminent danger of serious physical injury” at the time he filed this 11 action. 28 U.S.C. § 1915(g). The complaint contains no factual allegations indicating that 12 plaintiff was under imminent danger of serious physical injury at the time of filing.2 See 13 generally ECF No. 1. His claim involves medical care for painful but longstanding medical 14 conditions, and no facts that if true would support a finding of imminent harm such that the § 15 1915(g) danger exception would apply. Accordingly, the undersigned recommends that plaintiff 16 be ordered to pay the filing fee prior to proceeding any further with this action. 17 IV. PLAINTIFF’S MOTION FOR SANCTIONS, DISMISSAL OR AN ENTRY OF 18 JUDGMENT 19 Because plaintiff is a three-strikes litigant, he must first pay the filing fee prior to 20 proceeding any further with this action. Therefore, his motion for sanctions, dismissal or an entry 21 of judgment (see ECF No. 54) is premature. As a result, the undersigned will recommend that the 22 motion be denied as such. Once plaintiff pays the filing fee, he will be free to file the motion 23 2 The record indicates that the complaint was accompanied by a separate motion for preliminary 24 injunction. See ECF No. 5. The motion sought a court order requiring defendants to provide plaintiff with a bilateral hip replacement to relieve him of his pain and suffering. See id. at 1-3. 25 To the extent if any that the preliminary injunction motion can be construed as an assertion that 26 plaintiff was “under imminent danger of serious physical injury” within the meaning of Section 1915(g) at the time he filed the complaint, it fails to support the statutory exception. The 27 undersigned denied the motion in part on the grounds that plaintiff had failed to provide any evidence to substantiate his claim that irreparable medical harm would result if the injunction did 28 not issue. See ECF No. 6 at 2-3. 1 || anew should he still believe there is a need to do so. 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff be declared a three-strikes litigant within the meaning of 28 U.S.C. § 1915(g); 4 2. Defendants’ motion to revoke plaintiffs in forma pauperis status, filed August 5, 2019 5 || (ECF No. 41), be GRANTED; 6 3. Plaintiffs in forma pauperis status granted August 30, 2017 (see ECF No. 6) be 7 || REVOKED; 8 4. Plaintiff be ordered to pay the filing fees within a reasonable amount of time prior to 9 || proceeding any further with this action, and 10 5. Plaintiffs motion for sanctions, dismissal or an entry of judgment, filed October 2, 11 | 2019 (ECF No. 54), be DENIED as premature. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court. Such a document should be captioned “Objections to Magistrate 16 || Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 Yist, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: October 18, 2019 20 Ad Aterr— [U4 te 21 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28