(PC) Williams v. Childress ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, ) Case No. 1:21-cv-01793-DAD-SAB (PC) ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS 13 v. ) (ECF No. 7) 14 D. CHILDRESS, et al., ) ) ORDER DIRECTING PAYMENT OF INMATE 15 Defendants. ) FILING FEE BY CALIFORNIA DEPARTMENT ) OF CORRECTIONS 16 ) 17 Plaintiff Lance Williams is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 18 1983. 19 Plaintiff filed the instant action on December 16, 2021, in the United States District Court for 20 the Eastern District of California, Sacramento Division. The action was transferred to this Court on 21 December 21, 2021. 22 On January 18, 2022, the undersigned issued Findings and Recommendations recommending 23 that Plaintiff’s motion to proceed in forma pauperis be denied as Plaintiff suffered three or more 24 strikes under 28 U.S.C. § 1915(g) and failed to demonstrate that he was in imminent danger of 25 physical harm at the time he filed the complaint, noting that he had been moved to Folsom State 26 Prison since the filing of the complaint. (ECF No. 9.) 27 On April 7, 2022, District Judge Dale A. Drozd declined to adopt the Findings and 28 Recommendations finding because Plaintiff was incarcerated at Corcoran State Prison at the time he 1 filed the complaint, the imminent danger exception must be analyzed based on that location and not 2 his subsequent transfer to Folsom State Prison. (ECF No. 13.) For the reasons explained, the Court 3 finds that Plaintiff has meet the imminent danger exception to proceed in forma pauperis in this 4 action. 5 I. 6 DISCUSSION 7 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 8 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 9 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 10 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 11 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 12 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 13 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 14 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 15 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 16 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 17 U.S.C. § 1915(g). 18 A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) and is 19 precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the complaint was filed, 20 under imminent danger of serious physical injury. The Court takes judicial notice of the following 21 United States District Court Cases: (1) Williams v. Aparicio, Case No. 2:14-cv-08640-PA-KK (C.D. 22 Cal.) (dismissed February 5, 2015 as time-barred); (2) Williams v. Kerkfoot, Case No. 2:14-cv-07583- 23 GW-KK (C.D. Cal.) (dismissed May 15, 2015 as time-barred); and (3) Williams v. Young, Case No. 24 2:14-cv-08037-PA-KK (C.D. Cal.) (dismissed May 19, 2015 as time-barred). See Belanus v. Clark, 25 796 F.3d 1021 (9th Cir. 2015). The Court also takes judicial notice of the following United States 26 Court of Appeals cases: (1) Williams v. Paramo, Case No. 18-55319 (9th Cir.) (dismissed September 27 19, 2018 as frivolous); (2) Williams v. RJD Medical Staff Building, Case No. 18-55709 (9th Cir.) 28 1 (dismissed September 19, 2018 as frivolous); and (3) Williams v. Navarro, Case No. 20-56163 (9th 2 Cir.) (dismissed January 13, 2021 as frivolous). 3 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 4 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 5 the conditions he faced at the time he filed his complaint on December 16, 2021. Andrews, 493 F.3d at 6 1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 7 as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits- 8 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 9 Here, Plaintiff contends that on May 23, 2021, he was at yard recreation at Corcoran State 10 Prison wearing latex gloves to protect himself from the spread of COVID-19 while using the workout 11 equipment. Plaintiff was approached by Sergeant D. Childress, officer Hardcastle, officer Jaime and 12 three John Doe officers. Childress and Hardcastle said, “give me the gloves” to which Plaintiff stated, 13 “here don’t be pushing up on me like some gang and there’s no cleaning supplies on yard for workout 14 equipment I guess I’ll file a 602 appeal.” (Compl. at 3.) Plaintiff then proceeded to jog when 15 Childress said, “come here NIGGER BOY don’t you run from me.” Plaintiff stopped and turned 16 around when Childress said, “shut up NIGGER cuff up I said, “shut up.” (Id.) Plaintiff complied with 17 the cuff up order and informed Childress and Hardcastle that he has a cuffing chrono to not be 18 handcuffed in the back. Defendant Childress tripped Plaintiff making him fall and then all Defendants 19 began punching and kicking Plaintiff saying “stop resisting and does black lives matter now.” (Id. at 20 4.) Defendant Childress put his knee on Plaintiff’s neck saying “this familiar you don’t when to shup 21 up you keep running your mouth I bet you can’t talk now.” (Id.) Childress kept his knee on Plaintiff’s 22 neck for about five minutes then Defendants lifted Plaintiff off the ground and escorted him to the 23 building front where Childress told Plaintiff “any appeal you file I will get it and destroy it and deny it 24 and make sure you get a visitor in your cell about it.” (Id.) 25 Plaintiff was taken to a holding cell and was sexually assaulted during a strip search by 26 Defendants Hardcastle and Jaime. Plaintiff refused to get fully nude because Jaime is a female. 27 Hardcastle put cuffs on Plaintiff and Jaime stripped him of his clothes which consisted of basketball 28 shorts and briefs exposing Plaintiff’s penis and buttocks. Plaintiff fell to the ground when Jaime 1 grabbed Plaintiff’s penis with dirty gloves. Plaintiff was rolled on his stomach and Hardcastle spread 2 his butt cheeks apart so wide it tore his anal tissue causing bleeding and hemorrhoids. Plaintiff’s 3 repeated requests for medical attention were denied. Plaintiff’s cell was searched and his legal work 4 was destroyed and/or confiscated, food items were dumped on the floor, electronic items were broke. 5 Plaintiff asked Hardcastle for a 602 appeal form, he threw a stack of appeal forms in the air at 6 Plaintiff. Hardcastle then said, “If you use any of those (grievance forms) remember where you are 7 the SHU which means seriously hurt you get my drift and he walked away.” (Id. at 6.) On September 8 30, 2021, Hardcastle told Plaintiff that “if his name pops up in anything remember this is the SHU and 9 you know what that means.” (Id.) 10 Based on Plaintiff’s allegations, liberally construed, he has made the showing required by § 11 1915(g) and according, the request to proceed in forma pauperis will be granted. Plaintiff is obligated 12 to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated 13 to make monthly payments in the amount of twenty percent (20%) of the preceding month’s income 14 credited to Plaintiff’s trust account. The California Department of Corrections is required to send to 15 the Clerk of the Court payments from Plaintiff’s trust account each time the amount in the account 16 exceeds $10.00, until the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 17 II. 18 ORDER 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff's application to proceed in forma pauperis, (ECF No. 7), is GRANTED; 21 2. The Director of the California Department of Corrections or his or her designee shall 22 collect payments from Plaintiff’s prison trust account in an amount equal to twenty per 23 cent (20%) of the preceding month’s income credited to the prisoner’s trust account and 24 shall forward those payments to the Clerk of the Court each time the amount in the 25 account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 26 has been collected and forwarded to the Clerk of the Court. The payments shall be 27 clearly identified by the name and number assigned to this action; 28 1 3. The Clerk of the Court is directed to serve a copy of this order and a copy of Plaintiff's in 2 forma pauperis application on Director of the California Department of Corrections, via the 3 Court’s electronic case filing system (CM/ECF); and 4 4. The Clerk of the Court is directed to serve a copy of this order on the Financial Department 5 USS. District Court, Eastern District of California. 6 7 IT IS SO ORDERED. Al (re 8 Dated: _ April 12, 2022 OF 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28