(PC) Williams v. Thompson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, 1:19-cv-00330-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION TO 13 v. REVOKE PLAINTIFF’S IN FORMA PAUPERIS PRIVILEGE AND ORDER 14 THOMPSON, et al., STAYING DISCOVERY 15 Defendants. (Doc. 66) 16 14-DAY DEADLINE 17 John Wesley Williams is a state prisoner who brings this action against governmental 18 employees for alleged violations of his constitutional rights. In particular, Plaintiff sues over the 19 conditions of his confinement, which he contends pose an ongoing immediate danger of serious 20 physical injury, given his history of mental illness and self-injurious behavior. 21 Previously, this Court granted Plaintiff’s application to proceed in forma pauperis (“IFP”) 22 based on a finding that, while Plaintiff had more than “three strikes” for prior claims under 23 section 28 U.S.C. § 1915(g), he alleged facts sufficient to raise the “imminent danger” exception 24 for the case to proceed. (Doc. 13.) Defendants filed a motion to revoke Plaintiff’s IFP status 25 because Plaintiff is a three-strikes litigant and was not under any risk of imminent danger at the 26 time he filed the Complaint. (Doc. 66-1.) Plaintiff filed a response in opposition. (Doc. 72.) For 27 the reasons set forth below, the Court RECOMMENDS Defendants’ motion be GRANTED, 28 1 that the Court revoke Plaintiff’s IFP status, and require him to pay the filing fee or face dismissal 2 of this action. 3 I. Three Strikes Analysis 4 All parties instituting any civil action, suit, or proceeding in a district court of the United 5 States, except an application for writ of habeas corpus, must pay a filing fee. 28 U.S.C. § 1914(a). 6 An action may proceed despite a party’s failure to prepay the entire fee only if the court grants the 7 party leave to proceed IFP upon filing a good faith affidavit demonstrating an inability to pay. 28 8 U.S.C. § 1915(a); see also Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 9 The Court may grant a prisoner-plaintiff permission to proceed IFP, but he must repay the 10 fee from his prison account as funds become available. Harris v. Mangum, 863 F.3d 1133, 1139 11 (9th Cir. 2017) (citing 28 U.S.C. § 1915(b)). If the prisoner abuses the privilege of IFP status, a 12 prisoner may lose his ability to proceed IFP. Id. “[P]roceeding IFP is a privilege, not a right.” 13 Sonnier v. Los Angeles Cty. Dist. Attorney’s Off., 33 F. App'x 252, 253 (9th Cir. 2002). The 14 Prison Litigation Reform Act of 1995 (“PLRA”) restricted the ability of prisoners to file cases 15 IFP by adding a “three strikes” rule to section 1915: 16 In no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more occasions, 17 while incarcerated or detained in any facility, brought an action or appeal in a court 18 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, unless the prisoner is 19 under imminent danger of serious physical injury. 20 28 U.S.C. § 1915(g); see Skinner v. Switzer, 562 U.S. 521, 535 (2011). Not all unsuccessful cases 21 are “strikes” under this provision. See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)). 22 In considering whether a dismissal counts as a strike, the court must carefully evaluate the 23 order dismissing the prior action and determine that the action was dismissed because it was 24 frivolous, malicious, or failed to state a claim. Id. A case is ‘dismissed’ for purposes of section 25 1915(g) even if the district court styles the dismissal as denial of a prisoner’s IFP application. 26 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Dismissal also counts as a strike under 27 section 1915(g) “when (1) a district court dismisses a complaint on the ground that it fails to state 28 a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended 1 complaint,” regardless of whether the case was dismissed with or without prejudice. Harris v. 2 Mangum, 863 F.3d 1133, 1142–43 (9th Cir. 2017). 3 This Court previously reviewed and took judicial notice of seven dismissed cases that 4 constitute strikes under section 1915(g): Williams v. Narramore, 2:03-cv-01972-UA-AJW (C.D. 5 Cal., West. Div., July 25, 2003); Williams v. Gonzer, 2:04-cv-08941-UA-AJW (C.D. Cal., West. 6 Div., Nov. 22, 2004); Williams v. Young, 2:08-cv-01737-WBS-CMK (E.D. Cal., June 4, 2010); 7 Williams v. Hubbard, 2:10-cv-01717-UA-FFM (C.D. Cal., West. Div., July 6, 2010); Williams v. 8 Hubbard, Ninth Circuit Appeal No. 10-56230 (Nov. 4, 2010); Williams v. Harrington, 1:09-cv- 9 01823-GSA (E.D. Cal. May 25, 2012); and Williams v. Soto, Ninth Circuit Appeal No. 14-15524 10 (May 14, 2014). Upon the determination that Plaintiff had three or more strikes, this Court found 11 that Plaintiff is precluded from proceeding IFP unless he is “under imminent danger of serious 12 physical injury.” 28 U.S.C. § 1915(g). 13 II. Imminent Danger Exception 14 To satisfy the imminent danger exception of subsection 1915(g), the plaintiff must allege 15 facts demonstrating that he was “under imminent danger of serious physical injury” at the time of 16 filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the 17 circumstances at the time of the filing of the complaint that matters for purposes of the ‘imminent 18 danger’ exception to § 1915(g).”). The Ninth Circuit has adopted a definition of “imminent” as 19 referring not only to events already taking place, but also to events “ready to take place” or 20 “hanging threateningly over one’s head.” Id. at 1056 (quoting Merriam-Webster’s Collegiate 21 Dictionary 580 (10th ed. 1999)). Therefore, a prisoner may meet the immediate danger 22 requirement by alleging an ongoing danger of serious physical injury. Andrews, 493 F.3d at 1056 23 (following Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998)). 24 This Court previously found that the constitutional violations alleged to have occurred 25 during the 10-day period between February 10 and 20, 2019, do not fall within the imminent 26 danger exception. (Doc. 13, adopted by Doc. 18.) However, the Court found that Plaintiff’s 27 allegations concerning his transfer to a mental health crisis bed on February 20, 2019, were 28 sufficient to invoke the “imminent danger” exception because of the possibility that he would be 1 returned to an Administrative Segregation Unit, “where he claims he would face inadequate care 2 for his mental health condition and retaliatory conduct on the part of several 3 defendants―conditions that he also faced months earlier.” (Id. at 8 (citing Andrew, 185 F.3d at 4 1057).) Upon this finding, the Court granted Plaintiff’s request to proceed IFP. 5 III. REVOCATION OF IFP 6 Defendants filed the motion to revoke Plaintiff’s IFP status based on information not 7 previously provided to the Court. (See Doc. 66-1 at 2.) When a defendant challenges a prisoner's 8 right to proceed IFP, the defendant bears the burden of producing sufficient evidence to establish 9 that § 1915(g) bars the plaintiff's IFP status. Andrews, 398 F.3d at 1116. Once the defendant has 10 made out a prima facie case, the burden shifts to plaintiff to persuade the court that § 1915(g) 11 does not apply. Id. 12 According to J. Perez, CDCR’s Litigation Coordinator and prison housing records, 13 Plaintiff was transferred to Facility 4B at California State Prison, Corcoran on February 26, 2019, 14 as part of Corcoran’s Indecent Exposure (“IEX”) Pilot Program. (Doc. 66-2 at 2.) Under the IEX 15 Program, inmates must be placed in a designated IEX housing unit for approximately ninety days 16 for their first offense of indecent exposure and 180 days for inmates with two offenses. After the 17 end of the term, the inmate returns to the classification committee for transfer to another facility 18 or institution. (Id. at 3). In this case, Plaintiff remained at Facility 4B until he completed the IEX 19 program on May 14, 2019, when he was transferred to Salinas Valley State Prison (“SVSP”). (Id. 20 at 2.) Thus, when Plaintiff filed his Complaint on March 11, 2019, he was housed at Facility 4B, 21 where there was no threat of retaliatory conduct by the Defendants. 22 Plaintiff filed a response in opposition to Defendants’ motion. (See Doc. 72). Plaintiff 23 admits he was not under the care or control of any Defendant when he filed this action. (Doc. 72 at 24 5) Though Thompson supervised the IEX program a year before Plaintiff’s placement there, the 25 suggestion that this demonstrates the imminent danger exception is pure speculation. Nevertheless, 26 Plaintiff argues that the discharge from the mental health crisis bed was retaliatory and created an 27 ongoing, imminent danger of serious physical injury because of Plaintiff’s self-injurious behavior 28 (“SIB”) and suicidal ideations. (See id. at 3.) Plaintiff suggests that his mental health issues were 1 not “managed, quelled, or adequately treated” in IEX housing. (Id. at 3, 6.) Plaintiff complains of 2 generally inadequate mental health care and his mental decomposition while in the IEX program, 3 and he indicates that while housed at Corcoran IEX, “every SIB incident resulted in referral where 4 Plaintiff[’s] injuries were cleaned and bandaged.” (Id. at 6.) Accepting this contention as true, this 5 does not establish that the defendants had any role in the quality of the mental health treatment 6 provided. Likewise, the record does not support his contention that his placement at Facility 4B 7 away from the Defendants posed an imminent danger of serious bodily injury at the time he filed 8 his Complaint. Under these circumstances, Defendants have demonstrated that the imminent danger 9 exception to section 1915(g) does not apply, and Plaintiff is not entitled to proceed without 10 prepayment of fees. Accordingly, the Court ORDERS as follows: 11 1. Discovery and all other pending motions are STAYED pending the Court’s ruling on 12 these Findings and Recommendations and any objections thereto; and 13 2. The Clerk of Court shall assign a district judge to this case. 14 It is hereby RECOMMENDED that the Court GRANT Defendants’ Motion to Revoke 15 Plaintiff’s in forma pauperis status (Doc. 66) and order Plaintiff to pay the filing fee in full or face 16 dismissal of this case. 17 These Findings and Recommendations are submitted to the United States District Judge 18 assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after the date of service of these Findings and Recommendations, any party may file written 20 objections with the court and serve a copy on all parties. The document should be captioned, 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 23 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 Dated: April 8, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 27 28