(PC) Evans v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. EVANS, Case No. 1:19-cv-00818-LJO-BAM (PC) 12 Plaintiff, ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR AN EXTENTION OF TIME 13 v. (ECF No. 8) 14 S. SHERMAN, et al., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 15 Defendants. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND REQUIRING 16 PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION 17 (ECF Nos. 2, 7) 18 TWENTY-ONE (21) DAY DEADLINE 19 20 Plaintiff Richard A. Evans is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 12, 2019. (ECF No. 1.) 22 On June 19, 2019, the assigned Magistrate Judge issued Findings and Recommendations 23 that Plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) 24 and that Plaintiff be required to pay the $400.00 filing fee in full in order to proceed with this action. 25 (ECF No. 7.) The Findings and Recommendations were served on Plaintiff and contained notice 26 that any objections thereto were to be filed within fourteen (14) days after service of the findings 27 and recommendations. (Id.) 28 On June 27, 2019, Plaintiff filed a motion for an extension of time to file his objections to 1 the Findings and Recommendations. (ECF No. 8.) Nevertheless, since Plaintiff filed his objections 2 a day later, Plaintiff’s motion for an extension of time is denied as moot. 3 On June 28, 2019, Plaintiff timely filed objections to the Magistrate Judge’s Findings and 4 Recommendations. (ECF No. 9.) First, Plaintiff contends that Evans v. Suisun Police Dep’t, Case 5 No. 2:17-cv-01889-KJM-CMK (E.D. Cal.), cannot be counted as a strike because the case has been 6 reopened and he has filed an amended complaint against the Suisun Police Department and the 7 Suisun City Council. However, since United States District Judge Kimberly J. Mueller denied 8 Plaintiff’s motion to reopen Case No. 2:17-cv-01889-KJM-CMK on June 24, 2019, Case No. 2:17- 9 cv-01889-KJM-CMK remains dismissed for failure to state a claim.1 Therefore, the Court finds 10 that Case No. 2:17-cv-01889-KJM-CMK counts as a strike. Consequently, Plaintiff’s first 11 objection is overruled. 12 Second, Plaintiff contends that Evans v. Cal. Dep’t of Corr. & Rehab., Case No. 2:17-cv- 13 01890-WBS-DB (E.D. Cal.), cannot be counted as a strike because the case is being reopened due 14 to newly discovered evidence. However, while Plaintiff has filed a motion to reopen the case, 15 Magistrate Judge Deborah Barnes has issued findings and recommendations recommending that 16 Plaintiff’s motion to reopen the case be denied. Those findings and recommendation remain 17 pending before the District Judge. Therefore, since Plaintiff’s motion to reopen the case has not 18 been granted, Case No. 2:17-cv-01890-WBS-DB remains dismissed for failure to prosecute, 19 following a screening order dismissing Plaintiff’s complaint for failure to state a claim. 20 Consequently, the Court finds that Case No. 2:17-cv-01890-WBS-DB counts as a strike, and 21 overrules Plaintiff’s second objection. See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) 22 (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal 23 or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang 24 the PLRA bells of frivolous, malicious, or failure to state a claim.”) (citing El-Shaddai v. Zamora, 25 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted). 26 1 The Court takes judicial notice of Case Nos. 2:17-cv-01889-KJM-CMK (E.D. Cal.) and 2:17-cv-01890-WBS-DB (E.D. Cal.) pursuant to Federal Rule of Evidence 201(b)(2). See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 27 2007); Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005); U.S. el rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 28 1 Third, Plaintiff argues that, due to his wrongful conviction on child molestation charges, he 2 is in imminent danger of serious physical injury every day of his incarceration. In evaluating 3 whether the imminent danger exception applies, the “nexus” test outlined in Pettus v. Morgenthau, 4 554 F.3d 293, 297-98 (2d Cir. 2009), controls. See Stine v. Federal Bureau of Prisons, No. 1:13- 5 cv-1883-AWI-MJS, 2015 WL 5255377, at *2-*5 (E.D. Cal. Sept. 9, 2015). Under the “nexus” test, 6 prisoners with three or more strikes can qualify for the imminent danger exception of § 1915(g) 7 only if: (1) “the imminent danger of serious physical injury that a three-strikes litigant alleges is 8 fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial 9 outcome would redress that injury. The three-strikes litigant must meet both requirements in order 10 to proceed IFP.” Pettus, 554 F.3d at 298-99. 11 In this case, there is simply no factual or legal connection between Plaintiff’s allegations of 12 imminent danger due to his allegedly wrongful conviction on child molestation charges and the 13 allegedly unsafe and unsanitary conditions in his cell, the Building 3 dayroom, and the Facility E 14 dining room at California Substance Abuse Treatment Facility and State Prison, Corcoran as 15 alleged in Plaintiff’s complaint. Moreover, since the causes of action alleged in Plaintiff’s 16 complaint are unrelated to Plaintiff’s allegations of imminent danger, a favorable outcome in this 17 case will not redress Plaintiff’s allegations of imminent danger. Therefore, Plaintiff’s allegations 18 of imminent danger fail to meet either prong of the “nexus” test. Consequently, Plaintiff has failed 19 to establish that he was in imminent danger of serious physical injury when he filed his complaint. 20 Andrews v. Cervantes, 493 F.3d 1047, 1053–55 (9th Cir. 2007). Hence, Plaintiff’s third objection 21 is overruled. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 23 de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 24 objections, the Court finds that the Magistrate Judge’s Findings and Recommendations are 25 supported by the record and by proper analysis. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s motion for an extension of time to file objections to the June 19, 2019 28 Findings and Recommendations, (ECF No. 8), is DENIED as moot; 1 2. The Findings and Recommendations issued on June 19, 2019, (ECF No. 7), are 2 adopted in full; 3 3. In accordance with 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma 4 pauperis, (ECF No. 2), is DENIED; 5 4. Within twenty-one (21) days following the date of service of this order, Plaintiff 6 shall pay the $400.00 filing fee in full in order to proceed with this action; 7 5. Plaintiff is warned that if he fails to pay the filing fee within the specified time, this 8 action will be dismissed; and 9 6. This matter is referred back to the assigned Magistrate Judge for further proceedings 10 consistent with this order. 11 IT IS SO ORDERED. 12 13 Dated: August 6, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28