(PC) Stevens v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LYRALISA LAVENA STEVENS, Case No. 1:22-cv-01005-ADA-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING 13 v. PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE 14 CLARK, DENIED 15 Defendant. (ECF Nos. 4, 6) 16 TWENTY-ONE (21) DAY DEADLINE 17 18 Plaintiff Lyralisa Lavena Stevens is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 On August 19, 2022, the assigned Magistrate Judge issued findings and recommendations 21 suggesting that Plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 22 U.S.C. § 1915(g) and that Plaintiff be required to pay the $402.00 filing fee in full to proceed 23 with this action. (ECF No. 6.) Those findings and recommendations were served on Plaintiff and 24 contained notice that any objections thereto were to be filed within fourteen (14) days after 25 service. (Id. at 3.) Plaintiff timely filed objections to the findings and recommendations on 26 August 31, 2022. (ECF No. 9.) Plaintiff raises several arguments in her objections. 27 First, Plaintiff contends that in another pending action, Stevens v. Robinson, Case No. 28 1 1:22-cv-00742-EPG (PC),1 the Magistrate Judge did not count Stevens v. Mal (referred to as 2 Stevens v. Vimal in the pending findings and recommendations in the instant action), Stevens v. 3 Beard, or Stevens v. Becerra as strikes, in part because the Beard and Becerra cases are pending 4 reversal before the Ninth Circuit Court of Appeals. Plaintiff is mistaken. The Magistrate Judge 5 in Robinson specifically found that the Mal, Beard, and Becerra cases counted as strikes. Stevens 6 v. Robinson, Case No. 1:22-cv-00742-ADA-EPG (PC), Findings and Recommendations at ECF 7 No. 5, pp. 2–4. The assigned District Judge then rejected Plaintiff’s contention that Mal and 8 Beard should not qualify as strikes, adopted the findings and recommendations, and ordered 9 Plaintiff to pay the filing fee to proceed in that action. Id., Order Adopting Findings and 10 Recommendations at ECF 7. 11 Notwithstanding the treatment of these dismissals by the court in Robinson, Plaintiff has 12 mischaracterized the procedural posture of the appeals before the Ninth Circuit. First, the Ninth 13 Circuit affirmed the Mal decision on June 8, 2015. Stevens v. Mal, Case No. 1:12-cv-00239-GEB- 14 KJN, USCA Mandate Affirming Decision of District Court, ECF No. 51. Second, the Ninth 15 Circuit dismissed the appeal in Becerra on December 7, 2021 due to Plaintiff’s failure to 16 prosecute. Stevens v. Becerra, Case No. 1:21-cv-00346-DAD-JLT, USCA Order at ECF No. 18. 17 Neither of these cases are “pending reversal in the Ninth Circuit. Finally, while the appeal of 18 Beard remains pending at the Ninth Circuit, Stevens v. Beard, Case No. 1:17-cv-01002-AWI- 19 SAB, USCA Order Setting Briefing Schedule at ECF No. 48, “a prior dismissal on a statutorily 20 enumerated ground counts as a strike even if the dismissal is the subject of an appeal.” Coleman 21 v. Tollefson, 575 U.S. 532, 537 (2015). 22 Plaintiff next argues that she should be permitted to proceed in forma pauperis due to her 23 indigency. This is not relevant to a consideration of whether Plaintiff is subject to 28 U.S.C. 24 § 1915(g), or whether she meets the imminent danger exception to section 1915(g). 25 Plaintiff then appears to request recusal of the assigned Magistrate Judge due to the use of 26 the pronoun “his” on page 2, line 11 of the findings and recommendations. Plaintiff argues that by 27 28 1 In her objections, plaintiff incorrectly cites to this matter as 1:22-cv-00743-EPG (PC). 1 using the wrong pronoun, the Magistrate Judge has falsified Plaintiff’s gender and may not be 2 able to act fairly and impartially in this matter. In light of the Magistrate Judge’s correct usage of 3 Plaintiff’s preferred pronouns throughout the remainder of the findings and recommendations, the 4 Court does not find that a single instance of misgendering, which appears to be a clerical error, 5 supports recusal at this time. To the extent Plaintiff raises examples of other magistrate judges 6 misgendering her in orders issued in other pending actions, those arguments are not relevant to 7 whether recusal is appropriate in this matter. 8 Finally, Plaintiff contends that a grant of in forma pauperis status in this action is 9 necessary to protect her health, as she suffers from a brain tumor which has regrown due to “the 10 oxidative stress imparted from numerous defendants who mistreat Plaintiff throughout all of the 11 cases filed in this Court, as she awaits the surgical curative Jeffrey Beard won’t allow,” and that 12 these circumstances satisfy the imminent danger of serious physical injury requirement. (ECF 13 No. 9, p. 5.) Plaintiff refers to exhibits attached to her objections in support of the contention that 14 her brain tumor has regrown due to repeated denials of her curative surgery, as well as the 15 misgendering and gender hate based treatment of Defendant Clark. (Id.) Plaintiff requests that 16 the Court take judicial notice of these exhibits pursuant to Federal Rule of Civil Procedure 201. 17 (Id. at 7.) 18 The exhibits attached to Plaintiff’s objections, which appear to be medical records, do not 19 contain the type of facts that are judicially noticeable.2 Nevertheless, as the case remains at the 20 pleading stage the Court will accept the contents of these documents as true for purposes of 21 considering Plaintiff’s motion to proceed in forma pauperis. 22 While the exhibits confirm Plaintiff’s diagnosis of gender dysphoria, (ECF No. 9, pp. 13– 23 14), the Court can find no support for the contention that Plaintiff’s tumor has regrown due to 24 oxidative stress or misgendering. Rather, the records state that it is the belief of Andrew T. Parsa, 25 M.D., Ph. D., that Plaintiff developed a meningioma (tumor) due to ten years of hormone therapy, 26 2 Federal Rule of Evidence 201(b) provides that a court may judicially notice a fact that is not 27 subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot 28 reasonably be questioned. Fed. R. Civ. 201(b). 1 and that the number one risk of continuing her hormone therapy would be recurrence and/or 2 development of other meningiomas. (Id. at 11.) There is no mention of oxidative stress in any of 3 the attached exhibits. 4 To the extent Plaintiff is arguing that she is in imminent danger of serious physical injury 5 due to a refusal to provide gender affirming surgery, in lieu of continued hormone therapy, these 6 allegations are beyond the scope of the instant action. As discussed in the Magistrate Judge’s 7 findings and recommendations, the complaint alleges that Defendant Clark repeatedly 8 misgendered Plaintiff and read her protected medical documents out loud to another nurse, in 9 violation of HIPAA and Plaintiff’s right to privacy. (ECF No. 6, p. 2.) Plaintiff does not allege 10 that Defendant Clark has any authority over Plaintiff’s medical treatment, and Plaintiff seeks only 11 damages, but no injunctive relief, from Defendant Clark. (See ECF No. 1, p. 7.) 12 Plaintiff may not combine the actions of multiple defendants from multiple pending 13 lawsuits to meet the imminent danger exception in this action. “[I]n order to qualify for the 14 § 1915(g) imminent danger exception, a three-strikes prisoner must allege imminent danger of 15 serious physical injury that is both fairly traceable to unlawful conduct alleged in [the] complaint 16 and redressable by the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). Any danger 17 created by the actions of other individuals is not “fairly traceable” to the conduct of Defendant 18 Clark alleged in the complaint, and a resolution of this action would not redress the danger faced 19 by Plaintiff due to the actions of individuals named in other pending suits. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 21 novo review of the case. Having carefully reviewed the entire file, including Plaintiff’s 22 objections, the Court concludes that the Magistrate Judge’s findings and recommendations are 23 supported by the record and proper analysis. 24 Accordingly, 25 1. The findings and recommendations issued on August 19, 2022, (ECF No. 6), are 26 adopted in full; 27 2. In accordance with 28 U.S.C. § 1915(g), Plaintiff’s application to proceed in forma 28 pauperis, (ECF No. 4), is denied; and 1 3. Within twenty-one (21) days following the date of service of this order, Plaintiff 2 shall pay the $402.00 filing fee in full to proceed with this action. If Plaintiff fails 3 to pay the filing fee within the specified time, this action will be dismissed without 4 further notice. 5 6 7 | ITIS SO ORDERED. 8 Dated: _ September 23, 2022 9 UNITED fTATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28