(PC)Calloway v. Youssee ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, Case No. 1:21-cv-01450-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 YOUSSEE, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 15 Defendants. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 16 (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 20 Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in 21 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 22 29, 2021, together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) On October 1, 23 2021, Plaintiff filed a certified copy of his inmate trust account statement. (ECF No. 5.) 24 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 27 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 28 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 1 physical injury.”1 2 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 3 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 4 1053−55 (9th Cir. 2007). Plaintiff sues 48 defendants, who all appear to be employees of Wasco 5 State Prison or Kern Valley State Prison. (ECF No. 1.) Plaintiff alleges a variety of claims, 6 including: deliberate indifference to his serious medical needs relating to hemodialysis, a torn 7 rotator cuff, and suicidal ideations; retaliation for filing grievances, excessive force, and 8 violations of the ADA, the Armstrong remedial plan, and a variety of other federal statutes. It 9 appears that all of the incidents alleged occurred at either Wasco State Prison or Kern Valley 10 State Prison, between approximately March 2019 and July 2020. (Id.) At the time the complaint 11 was filed, Plaintiff was housed at California Health Care Facility. 12 Plaintiff has failed to allege that he was in any imminent danger of serious physical injury 13 at the time the complaint was filed, because at that time he was not housed at either of the 14 institutions where the violations allegedly occurred. The availability of the imminent danger 15 exception “turns on the conditions a prisoner faced at the time the complaint was filed, not at 16 some earlier or later time.” Andrews, 493 F.3d at 1053. “Imminent danger of serious physical 17 injury must be a real, present threat, not merely speculative or hypothetical.” Blackman v. 18 Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), 19 20 1 The Court takes judicial notice of the following United States District Court cases: (1) Calloway v. Baker, Case No. 3:13-cv-03266-JCS (N.D. Cal.) (dismissed on June 18, 2014 for failure to state a claim; (2) Calloway v. 21 Adams, Case No. 1:11-cv-01281-RRB (E.D. Cal.) (dismissed on October 27, 2014 for failure to state a claim); (3) Calloway v. Rangel, Case No. 1:12-cv-00193-GSA (E.D. Cal.) (dismissed on October 30, 2014 as barred by the 22 statute of limitations); (4) Calloway v. Scribner, Case No. 1:11-cv-00803-DLB (E.D. Cal.) (dismissed on December 2, 2014 as barred by the statute of limitations); (5) Calloway v. Cal. Dep’t of Corrs. & Rehab., Case No. 1:16-cv- 23 01305-DAD-JDP (E.D. Cal.) (dismissed on May 15, 2018 for failure to state a claim); (6) Calloway v. Biter, Case No. 1:13-cv-00747-LJO-SAB (E.D. Cal.) (dismissed on July 31, 2018 for failure to state a claim). See Belanus v. 24 Clark, 796 F.3d 1021 (9th Cir. 2015) (holding district court could determine that dismissal of complaint as barred by the statute of limitations qualified as a strike pursuant to 28 U.S.C. § 1915(g)). 25 The Court also takes judicial notice of the following United States Court of Appeals case: Calloway v. Baker, Case No. 14-16352 (9th Cir.) (dismissed on November 5, 2014 for failure to pay the filing fee after application to proceed in forma pauperis was denied because appeal was found to be frivolous). See Richey v. 26 Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (If an application to proceed in forma pauperis is denied by an appellate court because the appeal is frivolous, the case counts as a “strike” even if the appeal is not dismissed until later when 27 the plaintiff fails to pay the filing fee.). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Plaintiff must provide “specific fact allegations of ongoing serious physical injury, or a pattern of 2 misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 3 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent 4 danger or insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). 5 Plaintiff also does not allege that any of these violations continued to occur after July 6 2020 or after his transfer to California Health Care Facility. To the extent Plaintiff alleges that at 7 the time the complaint was filed, he faced an imminent danger of serious physical injury at 8 California Health Care Facility, Plaintiff has not alleged that this danger is “fairly traceable” to 9 the unlawful conduct asserted in the complaint. See Pettus v. Morgenthau, 554 F.3d 293, 297–98 10 (2d Cir. 2009) (outlining “nexus” test).3 11 Plaintiff has not satisfied the exception from the three strikes bar under 28 U.S.C. 12 § 1915(g), and Plaintiff must pay the $402.00 filing fee if he wishes to litigate this action. 13 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 14 District Judge to this action. 15 Further, it is HEREBY RECOMMENDED that: 16 1. The motion to proceed in forma pauperis, (ECF No. 2), be DENIED, pursuant to 28 17 U.S.C. § 1915(g); and 18 2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with this 19 action. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 23 file written objections with the court. The document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 25 3 Although the Ninth Circuit has not directly addressed this question, numerous other district courts have found that Pettus provides the controlling standard. See McClellan v. Kern Cty. Sheriff’s Office, No. 1:10-CV-0386, 2015 WL 26 5732077, at *1; Chappell v. Fleming, No. 2:12-CV-0234, 2013 WL 2156575, at *5 (E.D. Cal. May 17, 2013), findings and recommendations adopted by No. 2:12-CV-0234, 2013 WL 3872794 (E.D. Cal. July 25, 2013); 27 Williams v. Brennan, No. 2:12-CV-2155, 2013 WL 394871, at *1–2 (E.D. Cal. Jan. 30, 2013), findings and recommendations adopted by No. 2:12-CV-2155, 2013 WL 1192770 (E.D. Cal. Mar. 22, 2013); Johnson v. Sonoma 28 Cty. Main Adult Det. Facility, No. 14-CV-05397, 2015 WL 1744281, at *2 (N.D. Cal. Apr. 15, 2015). 1 objections within the specified time may result in the waiver of the “right to challenge the 2 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: October 4, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28