(PC) Ray v. Chefalo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VINCENT RAY, JR., 1:20-cv-01515-AWI-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, 13 Plaintiff, RECOMMENDING THAT PLAINTIFF’S MOTION TO PROCEED IN FORMA 14 vs. PAUPERIS BE DENIED UNDER 28 U.S.C. § 1915(g) AND THAT PLAINTIFF 15 S. CHEFALO, BE REQUIRED TO PAY THE $400.00 FILING FEE IN FULL WITHIN THIRTY 16 Defendant. DAYS 17 OBJECTIONS, IF ANY, DUE IN 14 DAYS 18 19 20 21 I. BACKGROUND 22 Edward Vincent Ray, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil 23 rights action pursuant to 42 U.S.C. § 1983. On October 27, 2020, Plaintiff filed the Complaint 24 commencing this action, together with a motion to proceed in forma pauperis pursuant to 28 25 U.S.C. § 1915. (ECF No. 1, 2.) 26 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 27 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that 28 “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 1 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 2 in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, 3 or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 4 danger of serious physical injury.” 5 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 6 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”). “Pursuant to § 1915(g), a 7 prisoner with three strikes or more cannot proceed IFP [or in forma pauperis].” Id.; see also 8 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 9 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from 10 IFP status under the three strikes rule[.]”). The objective of the PLRA is to further “the 11 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 12 128 F.3d 1310, 1312 (9th Cir. 1997). 13 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 14 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews, 15 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissal 16 as a denial of the prisoner’s application to file the action without prepayment of the full filing 17 fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated 18 three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal 19 court unless he can show he is facing “imminent danger of serious physical injury.” See 28 20 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP 21 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of 22 serious physical injury’ at the time of filing”). 23 While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his 24 request to proceed IFP, Andrews, 398 F.3d at 1119, “[i]n some instances, the district court docket 25 records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under 26 § 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28 U.S.C. § 1915(g), 27 however, the court must “conduct a careful evaluation of the order dismissing an action, and 28 other relevant information,” before determining that the action “was dismissed because it was 1 frivolous, malicious or failed to state a claim,” since “not all unsuccessful cases qualify as a strike 2 under § 1915(g).” Id. at 1121. 3 The Ninth Circuit has held that “the phrase ‘fails to state a claim on which relief may be 4 granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure 5 12(b)(6).’” Id. (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews 6 further holds that a case is “frivolous” for purposes of § 1915(g) “if it is of little weight or 7 importance” or “ha[s] no basis in law or fact.” 398 F.3d at 1121 (citations omitted); see also 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual 9 allegations and legal conclusions, is frivolous [under 28 U.S.C. § 1915] where it lacks an arguable 10 basis in either law or in fact . . . . [The] term ‘frivolous,’ when applied to a complaint, embraces 11 not only the inarguable legal conclusion, but also the fanciful factual allegation.”). 12 III. ANALYSIS 13 A. Three Strikes 14 A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 15 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the 16 Complaint was filed, under imminent danger of serious physical injury. Court records reflect 17 that on three prior occasions, Plaintiff has brought actions while incarcerated that were dismissed 18 as frivolous, malicious, or for failure to state a claim upon which relief may be granted. The 19 strikes described in these cases all occurred prior to the filing of the present action on August 4, 20 2020. 21 (1) Ray v. Schoo, et al., Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) 22 (dismissed on January 2, 2014, for failure to state a claim). 23 24 (2) Ray v. von Geldern, Case No. 4:12-cv-00315-YGR (N.D. Cal.) (dismissed 25 on October 25, 2012, for failure to state a claim). 26 27 (3) Ray v. von Geldern, Appeal Case No. 12-17472, Ninth Circuit Court of 28 Appeals (appellate court denied appeal as frivolous on February 28, 2013). 1 B. Imminent Danger 2 The Court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does 3 not meet the imminent danger exception. See Cervantes, 493 F.3d at 1053. 4 In the Complaint Plaintiff alleges that he is imminent danger of serious physical injury 5 because the defendant in this case, Sergeant Chefalo, stated, “You now have a target on your 6 back” because Plaintiff filed a 602 grievance complaining about an officer’s use of underground 7 regulations over a hat. Complaint at 3, 4. Plaintiff states that he took that comment to mean that 8 defendant Chefalo was going to have him assaulted, or assault Plaintiff himself, and that 9 defendant’s statement in prison is a death threat. Id. at 3. Plaintiff claims that since defendant’s 10 action one inmate who is in prison for murder told him, “You better pick your battles carefully,” 11 and while on the exercise yard Plaintiff overheard other inmates blame him for a “lack of 12 program” due to filing grievances. Id. at 5. Plaintiff also claims that he has no “strikes,” as his 13 prior filings were more like habeas petitions than civil rights complaints. Id. at 3. 14 The availability of the imminent danger exception turns on the conditions a prisoner faced 15 at the time the complaint was filed, not at some earlier or later time. Bradford v. Kraus, No. 2:19- 16 CV-1753 DB P, 2020 WL 738554, at *2 (E.D. Cal. Jan. 23, 2020), report and recommendation 17 adopted, No. 219CV1753KJMDBP, 2020 WL 731114 (E.D. Cal. Feb. 13, 2020) (citing see 18 Cervantes, 493 F.3d at 1053.). Plaintiff has not described any specific threats indicating that he 19 was about to be assaulted by anyone at the time he filed the Complaint. Plaintiff alleges that 20 defendant Chafelo threatened him on August 18, 2020, which is more than two months before he 21 filed the Complaint. Imminent danger of serious physical injury must be a real, present threat, 22 not merely speculative or hypothetical. Speculation that Plaintiff may be assaulted at a later time 23 is insufficient. The “imminent danger” exception is available “for genuine emergencies,” where 24 “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 25 (7th Cir. 2002). “Vague and utterly conclusory assertions” of harm are insufficient. White v. 26 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). 27 Plaintiff has not provided “specific fact allegations of ongoing serious physical injury, or 28 a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” 1 Bradford, 2020 WL 738554, at *2 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2 2003). Plaintiff’s allegations fail to meet the imminent danger exception. Bradford, 2020 WL 3 738554, at *3 (citing see Hendon v. Kulka, No. 2:14-cv-2581 AC P, 2015 WL 4637962 at *2 4 (E.D. Cal. Aug. 3, 2015) (finding plaintiff’s allegations that he was denied due process and 5 suffered side effects stemming from involuntary medication failed to meet imminent danger 6 exception). 7 Because Plaintiff fails to demonstrate that he meets the imminent danger exception to the 8 three-strikes bar, this court will recommend that Plaintiff be required to pay the $400.00 filing 9 fee for this case if he wishes to proceed with this case 10 IV. CONCLUSION AND RECOMMENDATIONS 11 Based on the foregoing, it is HEREBY RECOMMENDED that: 12 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s motion to proceed in forma pauperis 13 be denied under 28 U.S.C. § 1915(g); and 14 2. Plaintiff be required to pay the $400.00 filing fee in full within thirty days. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 18 may file written objections with the Court. The document should be captioned “Objections to 19 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 objections within the specified time may waive the right to appeal the District Court’s order. 21 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 IT IS SO ORDERED. 23 24 Dated: October 31, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28