(PC) Tunstall v. Ghaly ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT WILLIAM TUNSTALL, Jr., No. 2:21-cv-1578 DB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 MARK GHALY, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 17 1983. Plaintiff claims that defendants have failed to accommodate his disability, failed to advise 18 him of the right to remain silent during prisoner disciplinary proceedings, and have not 19 investigated his allegations of abuse. Presently before the court is plaintiff’s motion for 20 appointment of counsel (ECF No. 8) and his request for additional time to file an in forma 21 pauperis (“IFP”) application (ECF No. 6). For the reasons set forth below, the court will deny the 22 motion for an extension of time, deny the motion to appoint counsel, and recommend that 23 plaintiff be directed to pay the filing fee in full or face dismissal of this action. 24 REQUEST FOR AN EXTENSION OF TIME 25 By order dated September 9, 2021, the court informed plaintiff that he had not submitted 26 the proper in forma pauperis application and had not submitted a prison trust account. (ECF No. 27 4.) The court sent plaintiff the proper form and gave plaintiff thirty days leave to submit a 28 properly completed in forma pauperis application. In response plaintiff filed a motion seeking an 1 extension of time to submit his in forma pauperis application. (ECF No. 6.) However, as set 2 forth below, the undersigned will recommend that plaintiff be barred from proceeding in forma 3 pauperis in this action because he accrued three strikes prior to filing this action. Thus, any 4 extension of time to submit a properly completed in forma pauperis application would be futile. 5 Therefore, the court will deny the motion for an extension of time as moot. 6 IN FORMA PAUPERIS 7 I. In Forma Pauperis Statute 8 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 9 the commencement and prosecution of any suit without prepayment of fees by a person who 10 submits an affidavit indicating that the person is unable to pay such fees. However, 11 [i]n no event shall a prisoner bring a civil action . . . [in forma paupers] if the prisoner has, on 3 or more prior occasions, while 12 incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that 13 it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 14 serious physical injury. 28 U.S.C. § 1915(g). 15 This “three strikes rule” was part of “a variety of reforms designed to filter out the bad 16 claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 17 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007) (brackets in 18 original)). If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from 19 proceeding in forma pauperis unless he meets the exception for imminent danger of serious 20 physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this 21 exception, the complaint of a “three-strikes” prisoner must plausibly allege that the prisoner was 22 faced with imminent danger of serious physical injury at the time his complaint was filed. See 23 Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 24 II. Has Plaintiff Accrued Three Strikes? 25 A review of actions filed by plaintiff reveal that plaintiff is subject to 28 U.S.C. § 1915(g) 26 and is precluded from proceeding in forma pauperis unless he was, at the time the complaint was 27 filed, under imminent danger of serious physical injury. Judges have previously found that 28 1 plaintiff has accrued at least three strikes. See Tunstall v. Nappi, No. 2:21-cv-0308 TLN EFB P, 2 2021 WL 1907190 (E.D. Cal. May 12, 2021), findings and recommendations adopted, 2021 WL 3 2806963 (E.D. Cal. July 1, 2021); Tunstall v. Alexander, No. 2:21-cv-1701 TLN AC P, 2021 WL 4 4318090 (E.D. Cal. Sept. 23, 2021), findings and recommendations adopted, 2021 WL 4975299 5 (E.D. Cal. Oct. 26, 2021). The court takes judicial notice of those cases and plaintiff’s prior 6 filings described therein. MCIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (A 7 court may take judicial notice of its own records and the records of other courts). 8 Those cases include: (1) Tunstall v. Veal, No. 2:06-cv-07272 LKK EFB (E.D. Cal.) 9 (dismissed for failure to state a claim (ECF No. 67)); (2) Tunstall v. Knowles, No. 2:08-cv-1850 10 RCC (E.D. Cal.) (dismissed for failure to file an amended complaint after the court determined 11 that the first amended complaint failed to state a claim (ECF Nos. 16, 17)); (3) Tunstall v. State of 12 California, No. 2:11-cv-2587 KJM GGH (E.D. Cal.) (action dismissed because plaintiff failed to 13 file an amended complaint after the court determined the original complaint failed to state a claim 14 (ECF Nos. 4, 8)); Tunstall v. Duffy, No. 2:14-cv-2259 JAM EFB (E.D. Cal.) (action dismissed 15 because plaintiff failed to file an amended complaint after court determined the original complaint 16 failed to state a claim (ECF Nos. 24, 27)). The strikes described all occurred prior to plaintiff’s 17 initiation of the present action on September 2, 2021. 18 III. Does Plaintiff Meet the Imminent Danger Exception? 19 Because plaintiff has accrued three strikes, plaintiff is precluded from proceeding in forma 20 pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. 21 § 1915(g). The availability of the imminent danger exception turns on the conditions a prisoner 22 faced at the time the complaint was filed, not at some earlier or later time. See Andrews, 493 23 F.3d at 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be 24 rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical 25 injury must be a real, present threat, not merely speculative or hypothetical. To meet his burden 26 under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical 27 injury, or a patter of misconduct evidencing the likelihood of imminent serious physical injury.” 28 Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory 1 assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 2 1998). That is, the “imminent danger” exception is available “for genuine emergencies,” where 3 “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 4 (7th Cir. 2002). 5 The court has reviewed plaintiff’s complaint. (ECF No. 1.) Therein plaintiff alleges that 6 the defendants have failed to respond to his requests for investigation into his allegations. He 7 further alleges that he has received rule violation reports because his neurological issues have not 8 been treated and claims he was not given Miranda v. Arizona, 384 U.S. 436 (1966) 1 warnings 9 during prison disciplinary proceedings. (Id. at 3, 6.) 10 The court finds plaintiff’s allegations lack the specificity and urgency necessary to meet 11 the imminent danger exception. Accordingly, the court will recommend that plaintiff’s motion to 12 proceed in forma pauperis be denied and that he be required to pay the filing fee in order to 13 proceed with this action. 14 MOTION TO APPOINT COUNSEL 15 Plaintiff filed document captioned “Consent to Magistrate Judge Jurisdiction.” (ECF No. 16 8.) Therein, he stated he consents to magistrate judge jurisdiction and made a request for the 17 appointment of counsel. He argues the court should appoint counsel because he is “sensitive to 18 lighting and has to wear Dark Tinted Glasses.” (Id. at 2.) 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 1 Part of the Supreme Court’s holding in Miranda was that in order to protect the Fifth 27 Amendment privilege against self-incrimination, statements made during custodial interrogations may not be introduced into evidence during a criminal trial unless an officer advised the suspect 28 of their right to remain silent and the consequences of waiving that right. 384 U.S. 436. 1 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 2 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 3 common to most prisoners, such as lack of legal education and limited law library access, do not 4 establish exceptional circumstances that would warrant a request for voluntary assistance of 5 counsel. 6 In the present case, the court does not find the required exceptional circumstances. 7 Plaintiff has not explained how his light sensitivity will hinder his ability to articulate his claims 8 pro se. Additionally, at this stage of the proceedings the court is unable to determine plaintiff’s 9 likelihood of success on the merits. Accordingly, the court will deny the motion without 10 prejudice. 11 CONCLUSION 12 For the foregoing reasons, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion for an extension of time (ECF No. 6) is denied; 14 2. Plaintiff’s motion for the appointment of counsel (ECF No. 8) is denied; and 15 3. The Clerk of the Court is directed to randomly assign this action to a United States 16 District Judge. 17 IT IS HEREBY RECOMMENDED that: 18 1. Plaintiff’s motion to proceed in forma pauperis be denied; 19 2. The court find plaintiff accrued three strikes under 28 U.S.C. 6 1915(g) prior to this 20 action; and 21 3. The court order plaintiff to pay the $402.00 filing fee in order to proceed with this 22 action. 23 These findings and recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 28 //// 1 || time may result in a waiver of the right to appeal the district court’s order. Martinez v. □□□□□ 951 2 | F.2d 1153 (9th Cir. 1991). 3 | Dated: January 18, 2022 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 peas 4 DB/DB Prisoner Inbox/Civil Rights/S/tuns1578.3 strikes +31 15 16 17 18 19 20 21 22 23 24 25 26 27 28