(PC) Wilson v. Hampson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WAYNE WILSON, Case No.: 1:22-cv-0897 JLT BAK (EPG) (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL 13 v. ORDER DENYING PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA 14 VELMA HAMPSON, et al., PAUPERIS AND DIRECTING PAYMENT OF THE FILING FEE 15 Defendants. (Docs. 2, 10, 11) 16 17 David Wayne Wilson asserts he suffered violations of his civil rights while incarcerated 18 and seeks to proceed in forma pauperis in this action. (Docs. 2, 11.) This matter was referred to 19 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 I. The Magistrate Judge’s Findings and Recommendations 21 On July 28, 2022, the assigned magistrate judge reviewed Plaintiff’s motion to proceed 22 IFP and found he had at least three cases dismissed that qualified as a strike prior to filing his 23 complaint. (Doc. 10 at 2-3.) Specifically, the magistrate judge took juridical notice of the 24 following cases and the grounds for dismissal: 25 Four of Plaintiff’s prior lawsuits that were dismissed as frivolous or for a failure to state a claim upon which relief may be granted: (1) Wilson v. Tilton, Case No. 26 2:06-cv-01031-LKK-PAN (E.D. Cal.) (dismissed September 12, 2006, for failure to state a claim); (2) Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB- 27 CMK (E.D. Cal.) (dismissed October 31, 2006, for failure to state a claim); (3) Wilson v. Dovey, Case No. 2:06-cv- 01032-FD-EFB (E.D. Cal.) (dismissed 1 2:06-cv-00067-FCD-KJM (E.D. Cal.) (dismissed June 4, 2007, for failure to state a claim). Each of these actions was dismissed prior to the commencement 2 of the current action on July 20, 2022. 3 (Doc. 10 at 2.) Consequently, the magistrate judge found Plaintiff is subject to the three strikes 4 bar under 28 U.S.C. § 1915(g). (Id.) The magistrate judge also found the allegations in 5 Plaintiff’s complaint do not satisfy the “imminent danger of serious physical injury” exception to 6 Section 1915(g), even when liberally construing Plaintiff’s complaint. (Id. at 2-3.) Therefore, the 7 magistrate judge recommended Plaintiff’s motion to proceed IFP be denied. (Id. at 4.) 8 II. Plaintiff’s Objections 9 Plaintiff objected to the Findings and Recommendations on August 17, 2022, and 10 reviewed the cases identified by the magistrate judge. (Doc. 13 at 1-2.) He notes that Wilson v. 11 Tilton was “dismissed without prejudice.” (Id. at 1, emphasis omitted.) In addition, he contends 12 Wilson v. Schwartz settled and should not count as a strike because it concerned a medical 13 chrono, and Plaintiff received orthopedic boots, cotton blankets, and a vitamin chrono. (Id. at 2.) 14 Although Plaintiff summarized his claims in Wilson v. Dovey and Wilson v. Veal, he does not 15 dispute the dismissal of the cases. (Id.) Furthermore, Plaintiff contends that even if he has three 16 strikes, he meets satisfies the requirements for the “imminent danger” exception of Section 17 1915(g). (Id. at 2-6.) 18 III. Discussion and Analysis1 19 A district judge may "accept, reject or modify, in whole or in part, the findings and 20 recommendations...” 28 U.S.C. § 636(b)(1). If objections to the findings and recommendations 21 are filed, "the court shall make a de novo determination of those portions of the report or 22 specified proposed finding or recommendations to which objection is made. Id. A de novo 23 review requires the court to "consider[] the matter anew, as if no decision had been rendered." 24 Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). 25 1 The records of court proceedings cannot reasonably be questioned, and judicial notice may be taken of the Court's 26 record and docket. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff’d, 645 F.2d 699 (9th Cir. 1981). The Court again takes 27 judicial notice of its records in the following cases: (1) Wilson v. Tilton, Case No. 2:06-cv-01031-LKK-PAN; (2) Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB-CMK; (3) Wilson v. Dovey, Case No. 2:06-cv- 01032-FD-EFB; 1 A. Plaintiff’s strikes 2 A dismissal without prejudice may count as a strike under Section 1915(g). Lomax v. 3 Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (“The text of Section 1915(g)’s three-strike 4 provision refers to any dismissal for failure to state a claim, whether with prejudice or without”); 5 see also O’Neal v. Price, 531 F.3d 1146, 1153-54 (9th Cir. 2008) (also stating that a dismissal 6 without prejudice may count as a strike). In Wilson v. Tilton, the assigned magistrate judge 7 determined Plaintiff failed to state a claim and recommended dismissal, and the findings were 8 adopted. (See Case No. 2:06-cv-01031-LKK-PAN, Doc. 5 at 4 [finding “this action should be 9 dismissed for failure to state a claim upon which relief may be granted”], Doc. 8 at 1-2 [adopting 10 the recommendation that the matter be dismissed without prejudice].) Thus, the dismissal of 11 Wilson v. Tilton qualifies as a strike under Section 1915(g). See Lomax, 140 S. Ct. at 1723 (2020). 12 In addition, Plaintiff’s assertion that Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB- 13 CMK, should not count as a strike because it settled is not supported by the Court’s records. The 14 assigned magistrate judge found Plaintiff failed to state a claim and leave to amend should not be 15 granted. (Case No. 2:05-cv-01649-GEB-CMK, Doc. 24 at 4-5.) The magistrate judge 16 recommended the “action be dismissed for failure to state a claim.” (Id. at 5.) These 17 recommendations were adopted—despite Plaintiff’s objections—and the action was dismissed. 18 (Case No. 2:05-cv-01649-GEB-CMK, Doc. 25 and Doc. 26 at 1-2.) Thus, the dismissal qualifies 19 as a strike under Section 1915(g). 20 Furthermore, the magistrate judge properly determined that the dismissals for failure to 21 state a claim in Wilson v. Dovey, Case No. 2:06-cv- 01032-FD-EFB (E.D. Cal.) and Wilson v. 22 Veal, Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal.) qualified as strikes. Accordingly, 23 Plaintiff’s objections to the findings that he had at least three strikes under Section 1915(g) are 24 overruled. 25 B. Imminent danger exception 26 Under Section 1915(g), the imminent danger exception requires a showing that the 27 prisoner “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis 1 1915(g) imminent danger exception, a three-strikes prisoner must allege imminent danger of 2 serious physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 3 and redressable by the court”). As the magistrate judge determined, there is no explanation as to 4 how the alleged denial of court access places Plaintiff in imminent risk of physical injury, as 5 required under Section 1915(g). See, e.g., Prophet v. Clark, 2009 WL 1765197, at *1 (E.D. Cal. 6 June 22, 2009) (finding a prisoner’s claims concerning access to the courts, interference with 7 legal mail, and retaliation were insufficient to satisfy § 1915(g) exception in cases of “imminent 8 danger of serious physical injury”); McCall v. McGrew, 2012 WL 5456401, at *2 (C.D. Cal. Nov. 9 5, 2012) (“Denial of access to the courts is not a sufficient claim to allege that plaintiff was in 10 imminent danger of serious physical injury at the time he filed the Complaint”). Because Plaintiff 11 has not identified an imminent risk of physical injury tied to the allegations of his complaint, he 12 fails to show the exception to Section 1915(g) is applicable. 13 IV. Conclusion and Order 14 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. 15 Having carefully reviewed the entire matter, including Plaintiff’s objections, the Court concludes 16 the Findings and Recommendations are supported by the record and proper analysis. 17 Because Plaintiff is subject to the three-strikes provision and failed to show the imminent 18 danger exception of 1915(g) applies, his second motion to proceed in forma pauperis—filed the 19 same day as the magistrate judge issued the Findings and Recommendations discussed above 20 (Doc. 11)—is also denied. Accordingly, the Court ORDERS: 21 1. The Findings and Recommendations issued on July 28, 2022 (Doc. 10) are 22 ADOPTED in full. 23 2. Plaintiff’s motions to proceed in forma pauperis (Docs. 2, 11) are DENIED. 24 3. Plaintiff SHALL pay the $402 filing fee within 30 days of the date of service of 25 this order. 26 /// 27 /// 1 4. Plaintiff is advised that failure to pay the $402 filing fee as ordered will result in 2 the dismissal of this action. 3 4 IT IS SO ORDERED. 5 | Dated: _ August 22, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28