(PC) Cortinas v. Neel ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:21-cv-0611 TLN AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KATHERINE NEEL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. After waiving service of the complaint, defendants requested and were granted an 19 extension of time to file their responses to the complaint. ECF Nos. 22, 24, 25. Defendants 20 Gates, Lynch, and Sahota have now filed a motion to revoke plaintiff’s in forma pauperis status 21 (ECF No. 34), which has been joined by defendant Bobbala (ECF No. 32), and defendant 22 Soltanian-Zadeh has filed a motion to dismiss (ECF No. 33). Gates, Lynch, Sahota, and Bobbala 23 have also requested that their time to respond to the complaint be extended until there has been a 24 ruling on their motion to revoke plaintiff’s in forma pauperis status. ECF Nos. 31, 32. 25 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States 26 to authorize the commencement and prosecution of any suit without prepayment of fees by a 27 person who submits an affidavit indicating that the person is unable to pay such fees. However, 28 //// 1 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 2 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 3 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 4 prisoner is under imminent danger of serious physical injury. 5 28 U.S.C. § 1915(g). Gates, Lynch, Sahota, and Bobbala argue that plaintiff’s in forma pauperis 6 status should be revoked because he has accumulated at least four strikes; they make no argument 7 regarding the imminent danger exception. ECF No. 34-1. 8 Plaintiff’s complaint alleges that defendants are continuing to deprive him of pain 9 medication and medication assisted treatment, and that the deprivation has left him in so much 10 pain that he is not able to leave his cell. ECF No. 1 at 6. Plaintiff simultaneously filed a motion 11 for a temporary restraining order or preliminary injunction, also alleging that he is still being 12 denied treatment and the alleged injury is ongoing. See ECF No. 2; Andrews v. Cervantes, 493 13 F.3d 1047, 1056-57 (9th Cir. 2007) (“[A] prisoner who alleges that prison officials continue with 14 a practice that has injured him or others similarly situated in the past will satisfy the ‘ongoing 15 danger’ standard and meet the imminence prong of the three-strikes exception.”). Although 16 plaintiff has since been transferred from California State Prison-Sacramento (ECF No. 6), where 17 defendants are employed, at the time he filed the complaint he was still housed at that facility 18 (ECF No. 1-1), and “it is the circumstances at the time of the filing of the complaint that matters 19 for purposes of the ‘imminent danger’ exception to § 1915(g).” Andrews, 493 F.3d at 1053. 20 In cases such as this, where the plaintiff alleges facts demonstrating that he is in imminent 21 danger of serious physical injury at the time he filed the complaint, it is irrelevant how many 22 strikes he may have accrued. See, e.g., Womack v. Tate, No. 20-15011, 2020 WL 3799205, at 23 *1, 2020 U.S. App. LEXIS 16029, at *1 (9th Cir. May 19, 2020) (reversing denial of request to 24 proceed in forma pauperis where prisoner had three strikes because allegation that he “was in 25 excruciating pain” due to the discontinuation of pain medication and mobility vest sufficiently 26 alleged imminent danger of serious physical injury); Bradford v. Marchak, 667 F. App’x 616, 617 27 (9th Cir. 2016) (reversing denial of request to proceed in forma pauperis where prisoner was 28 subject to § 1915(g) but allegations of “of chest pain, dizziness, blurred vision and headaches 1 | from ongoing involuntary psychotropic medication” were sufficient to allege imminent danger of 2 || serious physical injury). Plaintiff was properly granted leave to proceed in forma pauperis and 3 | defendants’ motion to revoke such status should be denied.! 4 Accordingly, IT IS HEREBY ORDERED that defendants Gates, Lynch, Sahota, and 5 || Bobbala’s motion for an extension of time (ECF Nos. 31, 32) is GRANTED in part. These 6 || defendants shall have thirty days from the filing of this order to file a response to the complaint. 7 IT IS FURTHER RECOMMENDED that defendants Gates, Lynch, Sahota, and 8 | Bobbala’s motion to revoke plaintiffs in forma pauperis status (ECF Nos. 32, 34) be DENIED. 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, any party may file written 12 || objections 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.” Any response to the 14 || objections shall be served and filed within fourteen days after service of the objections. The 15 || parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | DATED: October25, 2022 * thin Chane ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 1 Plaintiff is advised that while it is being recommended that the motion to revoke his in forma 27 || pauperis status be denied, defendant Soltanian-Zadeh’s motion to dismiss remains pending and failure to respond may be deemed a waiver of any opposition to granting the motion. See L.R. 28 | 230(l).