(PC) Bradford v. Withrow ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, No. 2:23-cv-0223 DAD KJN P 12 Plaintiff, 13 v. FINDINGS &RECOMMENDATIONS 14 PATRICK WITHROW, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, currently housed at California State Prison, 18 Sacramento (“CSP-SAC”). Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding 19 was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has not 20 paid the court’s filing fee or requested leave to proceed in forma pauperis under 28 U.S.C. 21 §1915. However, as discussed below, court records confirm that plaintiff is not eligible to 22 proceed in forma pauperis; thus, he must pay the court’s filing fee in full to proceed with this 23 action. 24 Section 1915(g) 25 A prisoner may not proceed in forma pauperis: 26 if the prisoner has, on 3 or more prior 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 a claim upon which relief may 28 be granted, unless the prisoner is under imminent danger of serious 1 physical injury. 2 28 U.S.C. § 1915(g). Court records demonstrate that on at least three occasions lawsuits filed by 3 the plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to 4 state a claim upon which relief may be granted. Indeed, in Bradford v. German, No. 1:15-cv- 5 1511 LJO BAM (E.D. Cal. Oct. 14, 2015), the district court found plaintiff had sustained at least 6 three strikes, taking judicial notice of the following cases filed by plaintiff: 7 Bradford v. White, et al., 2:98-CV-00180-FCD-JFM-P (dismissed June 3, 1999, for frivolousness and as barred by the statute of 8 limitations); Bradford v. Terhune, et al., 2:02-CV-01859-FCD- GGH-P (dismissed June 18, 2003, pursuant to 28 U.S.C. § 1915(g)); 9 Bradford v. Terhune, et al., 1:04-CV-05496-AWI-DLB-PC (dismissed October 21, 2004, for failure to state a claim); Bradford 10 v. Superior Court of CA, 1:07-CV-01031-OWW-LJO (dismissed August 21, 2007, for frivolousness) Bradford v. Grannis, 2:05-CV- 11 00862-FCD-DAD-P (dismissed September 30, 2007, for frivolousness and failure to state a claim); Bradford v. Amaya, 1:08- 12 CV-00211-OWW GSA (dismissed April 17, 2008, for failure to state a claim; and Bradford v. Terhune, et al., 1:04-CV-05261-LJO-SMS- 13 PC (dismissed May 12, 2008, for failure to state a claim). 14 Bradford v. German, No. 1:15-cv-1511 LJO BAM (ECF No. 4 at 1, n.1.) The undersigned takes 15 judicial notice of all of the above cases. Each of the above cases were filed prior to the instant 16 action. The above cases demonstrate plaintiff sustained three strikes under § 1915(g). 17 Imminent Danger 18 Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless 19 plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The 20 operative pleading must make “a plausible allegation” that the prisoner “faced ‘imminent danger 21 of serious physical injury’ at the time of filing” of the complaint. Andrews v. Cervantes, 493 22 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for the first time in 23 the Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to 24 determine whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 25 1182, 1190 (9th Cir. 2015). But assertions of imminent danger may be rejected as overly 26 speculative, fanciful, or conclusory. Andrews, 493 F.3d at 1057, n.11. 27 In addition, “the PLRA requires a nexus between the alleged imminent danger and the 28 violations of law alleged in the prisoner’s complaint.” Ray v. Lara, 31 F.4th 692 (9th Cir. 2022) 1 (adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) whether the 2 imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to 3 unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would 4 redress that injury.” Id. at *7 (adopting test as articulated by Second Circuit, citation omitted). 5 The three-strikes litigant must meet both requirements of the nexus test to proceed. Id. 6 Plaintiff’s Complaint 7 Here, plaintiff names various employees of the Stockton County Jail as defendants, 8 claiming violations of his rights under the Constitution and California state law. Plaintiff was 9 housed (“out to court”) at the Stockton County Jail for a felony criminal trial which was 10 ultimately dismissed. (ECF No. 1 at 4.) Specifically, plaintiff claims that on October 18, 2022, 11 defendants S. Carter and C. Gomez attacked plaintiff in his cell using unnecessary and excessive 12 force and thereafter, various other defendants denied plaintiff his medications, food and other 13 necessities. (ECF No. 1 at 8.) Plaintiff also claims that defendants destroyed and stole his 14 personal property. In addition to money damages, plaintiff seeks return of his property or 15 reimbursement therefor. 16 Discussion 17 Plaintiff fails to set forth any facts demonstrating he faced an imminent danger of serious 18 physical injury at the time he filed his complaint. Plaintiff’s complaint was signed on January 15, 19 2023, and noted plaintiff’s current housing at CSP-SAC. The alleged use of force by defendants 20 Carter and Gomez took place on October 18, 2022, at the Stockton County Jail. In addition, 21 because plaintiff is now housed at CSP-SAC, he is no longer subject to incidents at the Stockton 22 County Jail. Plaintiff is not likely to return to the Stockton County Jail given the dismissal of the 23 criminal charges. As discussed above, plaintiff must set forth facts demonstrating that at the time 24 he filed this action he faced an imminent danger of serious physical injury that is fairly traceable 25 to his underlying allegations. Plaintiff does not. 26 Because plaintiff alleges no facts suggesting that he was under imminent danger of serious 27 physical injury at the time he filed this action on January 15, 2023, he may not invoke the 28 //// 1 || exception to 28 U.S.C. §1915(g). Therefore, plaintiff must submit the court’s filing fee in full to 2 || proceed with this action. 3 Plaintiff is cautioned that failure to pay the court’s filing fee in full will result in the 4 | dismissal of this action. 5 In accordance with the above, IT IS RECOMMENDED that because plaintiff is not 6 || entitled to proceed in forma pauperis, plaintiff be ordered to pay the court’s filing fee in full 7 || within thirty days from the date of any district court order adopting the instant findings and 8 || recommendations and be warned that failure to do so will result in the dismissal of this action. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, plaintiff may file written objections 12 || with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 14 | failure to file objections within the specified time may waive the right to appeal the District 15 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 || Dated: February 27, 2023 17 . 18 FresiQ Newser KENDALL 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 | rad0223.1915¢.noifp 23 24 25 26 27 28