(PC) Williams v. Thierry ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No. 1:21-cv-01792-BAK-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND 14 THIERRY, DISMISS THE CASE WITHOUT PREJUDICE 15 Defendant. (Doc. No. 8) 16 14-DAY DEADLINE 17 Clerk of Court to Assign a District Judge 18 19 Before the Court is Plaintiff Lance Williams’s motion to proceed (IFP) forma pauperis 20 pursuant to 28 U.S.C. § 1915. (Doc. No. 8.) Because Plaintiff has at least three “strikes” under 21 section 1915(g) and was not in imminent danger of serious physical injury at the time he filed the 22 action, the Court recommends that the motion be denied and the case dismissed without 23 prejudice. 24 APPLICABLE LAW 25 Three-Strikes Provision of 28 U.S.C. § 1915 26 28 U.S.C. § 1915 governs proceedings in forma pauperis (“IFP”) and provides in 27 pertinent part: /// 1 In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 2 brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 4 5 28 U.S.C. § 1915(g). This section is commonly referred to as the “three strikes” provision. 6 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (“King”). “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) (“Cervantes”) (holding that 9 “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP 10 status under the three strikes rule”). This section was added under the Prison Litigation Reform 11 Act (PLRA) to further “the congressional goal of reducing frivolous prisoner litigation in federal 12 court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 13 When applying 28 U.S.C. § 1915(g), the court must evaluate the order dismissing an 14 action and other relevant information before determining that the action “was dismissed because 15 it was frivolous, malicious or failed to state a claim.” King, 398 F.3d at 1121. Not all dismissed 16 cases qualify as a strike under § 1915(g). Id. 17 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from 18 pursuing any other IFP action in federal court unless he can show he is facing “imminent danger 19 of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52 (noting § 20 1915(g)’s exception for IFP complaints which “make[ ] a plausible allegation that the prisoner 21 faced ‘imminent danger of serious physical injury’ at the time of filing”). Plaintiff must provide 22 “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct 23 evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 24 1048, 1050 (8th Cir. 2003). The Court must construe the prisoner's “facial allegations” liberally 25 to determine whether the allegations of physical injury are plausible. Williams v. Paramo, 775 26 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be rejected as 27 overly speculative, fanciful, “conclusory or ridiculous.” Cervantes, 493 F.3d at 1057, n.11. “[V]ague and utterly conclusory assertions” of imminent danger are insufficient. White v. 1 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). The “imminent danger” exception is 2 available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and 3 proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Conditions that posed 4 imminent danger to Plaintiff at some earlier time are immaterial, as are any subsequent 5 conditions. Cervantes, 493 F.3d at 1053. Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 6 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). 7 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 8 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 9 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 10 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 11 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 12 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 13 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 14 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298– 15 99 (2d Cir. 2009)). 16 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. § 17 1915(g), the proper procedure is to dismiss the case without prejudice to re-filing the action upon 18 pre-payment of fees at the time the action is refiled. Hardney v. Hampton, No. 2:20-cv-01587- 19 WBS-DMC-P, 2021 WL 4896034, at *4 (E.D. Cal. Oct. 20, 2021), report and recommendation 20 adopted, No. 2:20-cv-01587-WBS-DMC-P, 2021 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing 21 Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Campbell v. Vance, No. CIV S-05- 22 1163 RRB, 2005 WL 3288400, at *1 (E.D. Cal. Nov. 30, 2005). A plaintiff may resume his 23 claims if he prepays the civil and administrative filing fees required by 28 U.S.C. § 1914(a). 24 ANALYSIS 25 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 26 118, 119 (9th Cir. 1980). Here, the Court takes judicial notice of three of Plaintiff’s prior 27 lawsuits that were dismissed on the grounds that they failed to state a claim: 1 (1) Williams v. Aparicio, Case No. 2:14-cv-08640-PA-KK (C.D. Cal.) (dismissed 2 February 5, 2015, as time-barred); 3 (2) Williams v. Kerkfoot, Case No. 2:14-cv-07583-GW-KK (C.D. Cal.) (dismissed May 4 15, 2015, as time-barred); and 5 (3) Williams v. Young, Case No. 2:14-cv-08037-PA-KK (C.D. Cal.) (dismissed May 19, 6 2015, as time-barred). 7 The Court also takes judicial notice of the following United States Court of Appeals 8 cases: (1) Williams v. Paramo, Case No. 18-55319 (9th Cir.) (dismissed September 19, 2018, as 9 frivolous); 10 (2) Williams v. RJD Medical Staff Building, Case No. 18-55709 (9th Cir.) (dismissed 11 September 19, 2018, as frivolous); and 12 (3) Williams v. Navarro, Case No. 20-56163 (9th Cir.) (dismissed January 13, 2021, as 13 frivolous). 14 Each of these cases was dismissed prior to the commencement of the current action on 15 December 16, 2021. Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded 16 from proceeding in forma pauperis in this action unless, at the time he filed his complaint, he 17 was under imminent danger of serious physical injury. See Cervantes, 493 F.3d at 1052–53. 18 The Court has reviewed Plaintiff’s complaint, (Doc. 8), and finds that Plaintiff’s 19 allegations do not meet the imminent danger exception. Plaintiff, a highly litigious prisoner, 20 uses much boilerplate language and legal standards that are set forth in court orders and findings 21 and recommendations: “this activity by defendant Thierry . . . put [Plaintiff] in imminent danger 22 of serious physical injury” and “his safety . . . was placed in constant imminent danger of serious 23 physical injury at time of complaint’s filing.” However, assertions of imminent danger may be 24 rejected as overly speculative, fanciful, “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, 25 n.11. Upon review of the complaint, Plaintiff’s assertions of imminent danger are conclusory 26 and unsupported by the factual allegations. 27 In the complaint, Plaintiff alleges that he was attacked on June 4, 2021, around 4:00 a.m., 1 Plaintiff’s cell and shined a light on his penis, striking the cell door, and making a scene. 2 Defendant allegedly made comments about Plaintiff masturbating, and she began yelling at 3 Plaintiff, “you pervert, you pedophile, you wiener wacker [sic].” (Id.). Plaintiff asserts that 4 these actions placed Plaintiff’s safety at risk, endangered his life, and put him in imminent 5 danger of serious physical injury. (Id.) 6 According to Plaintiff, Defendant stormed out of the building and came back with four or 7 five officers, non-party John Does 1–5. Plaintiff alleges that the Doe officers removed Plaintiff 8 and his cellmate, handcuffed them, and interrogated them about who was facing charges for sex 9 crimes. The cellmate stated that it was Plaintiff, and he was sent back to their cell. Plaintiff 10 alleges that Defendant made another comment about seeing Plaintiff masturbating, and 11 confronted her, calling her a “lying bitch.” She walked by, slapped Plaintiff, and said, “shut up 12 n------.” (Id. at 5.) 13 Plaintiff alleges that one of the John Doe officers then struck Plaintiff in his jaw and said, 14 “Don’t be calling my partner no bitch.” Plaintiff states that the same officer yelled out to the 15 building that Plaintiff is a “wienee wacker” and a rapist. (Id.) When Plaintiff requested to be 16 taken to the nurse, Defendant and the John Does said that “rapist get nothing and got nothing 17 coming.” (Id. at 6.) 18 In support of his allegations, Plaintiff submits the declaration of Robert Morgan, Sr., 19 apparently drafted by Plaintiff. (Doc. No. 1 at 10.) According to the declaration, he witnessed 20 Defendant kicking Plaintiff’s cell door and yelling derogatory statements and expletives. She 21 left the unit and returned with four or five officers. One yelled to the building that “Mr. 22 Williams a wienee wacker and had a history of it, this action place Mr. Williams life at risk, at 23 the current time.” (Id.) 24 Under a liberal construction of Plaintiff’s complaint, the factual allegations do not 25 support that he was in imminent danger at the time he filed the complaint. Even accepting 26 Plaintiff’s allegations as true,1 approximately six months passed between the event, June 4, 2021, 27 and the filing of the complaint on December 16, 2021. Plaintiff suggests that Defendant and a 1 John Doe yelled that Plaintiff is a sex offender loudly enough for others in the building to hear, 2 the factual allegations do not indicate that Plaintiff suffered any consequences from these 3 actions. He claims that his life is at risk because he has been falsely labeled a sex offender, but 4 there are no facts showing a specific threat made against him because of his label. See LeBlanc 5 v. Kiernan, No. 1:18-cv-00591-LJO-GSA-PC, 2018 WL 4005304, at *3 (E.D. Cal. Aug. 20, 6 2018) (“He claims that his life is at risk because he has been falsely labeled a sex offender, but 7 there are no facts showing a specific threat made against him because of his label.”). 8 Therefore, the complaint does not support allegations of ongoing serious physical injury 9 or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” 10 Martin, 319 F.3d at 1050. Rather, the complaint describes a single, past occurrence. 11 Plaintiff’s allegations, if true, do not show that he is in imminent danger of serious physical 12 injury. See Andrews, 493 F.3d at 1055. Thus, Plaintiff is precluded from proceeding in forma 13 pauperis, and this action is properly dismissed without prejudice to refiling upon prepayment of 14 the civil and administrative filing fees. See Hardney, 2021 WL 4896034, at *4 (citing Dupree, 15 284 F.3d at 1236). 16 CONCLUSION AND RECOMMENDATIONS 17 Based on the foregoing, the Court RECOMMENDS that: 18 1. Plaintiff’s motion to proceed in forma pauperis, (ECF No. 8), be DENIED; and 19 2. This action be DISMISSED without prejudice to refiling upon prepayment of 20 the filing fees. 21 The Clerk of Court is DIRECTED to randomly assign a United States District Judge for 22 consideration of these Findings and Recommendations. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 of the date of service of these Findings and Recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned, “Objections to Magistrate 27 Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the 1 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 “| Dated: _ January 19, 2022 Wihaw. Lh fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28