(PC) Lewis v. Phillip ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL DIXON LEWIS, Case No. 1:23-cv-01715-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION 13 v. TO PROCEED IN FORMA PAUPERIS 14 B. PHILLIP, et al. (Doc. 2) 15 Defendants. 14-DAY OBJECTION PERIOD 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Paul Dixon Lewis (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action filed under 42 U.S.C. § 1983. (Doc. 1). Plaintiff filed the instant action on 20 December 14, 2023, along with a motion to proceed in forma pauperis. (Docs. 1-2). 21 Discussion 22 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted “to curb frivolous 23 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). 24 Pursuant to the PLRA, the in forma pauperis statue was amended to include section 1915(g), a 25 non-merits related screening device which precludes prisoners with three or more “strikes” from 26 proceeding in forma pauperis unless they are under imminent danger of serious physical injury. 27 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute 28 provides that “[i]n no event shall a prisoner bring a civil action ... under this section if the prisoner 1 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 2 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 3 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 4 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 5 In determining whether a case counts as a “strike,” “the reviewing court looks to the 6 dismissing court’s action and the reasons underlying it…. This means that the procedural 7 mechanism or Rule by which the dismissal is accomplished, while informative, is not 8 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted). 9 A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) 10 and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the 11 complaint was filed, under imminent danger of serious physical injury. The Court takes judicial 12 notice1 of the following United States District Court cases: (1) Lewis v. Baker, et al., No. 2:19-cv- 13 01460-KJM-EFB (E.D. Cal.) (dismissed on January 15, 2020, for failure to state a claim and 14 failure to file an amended complaint); (2) Lewis v. Clark, et al., No. 1:20-cv-00120-DAD-JDP 15 (E.D. Cal.) (prisoner action dismissed on March 20, 2020, under the favorable-termination rule of 16 Heck v. Humphrey); and (3) Lewis v. Moss, et al., No. 2:19-cv-01970-TLN-EFB (E.D. Cal.) 17 (prisoner action dismissed on July 8, 2020, under the favorable termination rule of Heck). 18 A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g). 19 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). Further, a 20 prisoner’s claim dismissed as Heck barred constitutes a strike where the Heck prohibition is 21 “facially obvious.” Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). Here, the undersigned has 22 reviewed Plaintiff’s two Heck barred actions cited above (Clark and Moss) and concludes those 23 dismissals clearly implicated Heck, and, hence, likewise constitute strikes under the PLRA. In 24 particular, Plaintiff was incarcerated at the time he filed both actions and raised similar claims in 25 each (to wit, that he was suffering from “illegal incarceration” and an illegal sentence). See Ray, 26 31 F.4th at 698. 27 28 1 Judicial notice may be taken of court records. United States v. Wilson, 631 F.2d 118, 1 The issue now becomes whether Plaintiff has met the imminent danger exception, which 2 | requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and 3 | which turns on the conditions he faced at the time he filed his complaint on December 14, 2023 4 | (with application of the mailbox rule). Andrews v. Cervantes, 493 F.3d 1047, 1053-56 (9th Cir. 5 | 2007). Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 6 | as are any subsequent conditions. /d. at 1053. While the inquiry is merely procedural rather than 7 | amerits-based review of the claims, the allegations of imminent danger must still be plausible. 8 | Jd. at 1055. Here, Plaintiff has not alleged any imminent danger of serious physical injury at the 9 | time he filed his complaint. See generally (Doc. 1). Therefore, Plaintiff does not establish an 10 | exception to the three-strikes rule of § 1915(g), and he is precluded from proceeding in forma 11 | pauperis in this action. 12 | Conclusion and Recommendation 13 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 14 | District Judge to this action. 15 Further, IT IS HEREBY RECOMMENDED that, pursuant to 28 U.S.C. § 1915(g), 16 | Plaintiff not be allowed to proceed in forma pauperis and instead be directed to pay the $405.00 17 | filing fee in full if he wishes to proceed with this action. 18 These Findings and Recommendations will be submitted to the United States District 19 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 20 | after being served with these Findings and Recommendations, Plaintiff may file written 21 | objections with the Court. The document should be captioned “Objections to Magistrate Judge's 22 | Findings and Recommendations.”. Plaintiff is advised that failure to file objections within the 23 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 24 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 | IT IS SO ORDERED. *6 Dated: _ December 22, 2023 | Ww ML D Ry 27 UNITED STATES MAGISTRATE JUDGE 28