(PC) Blake v. Roseville Police Dept. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWNCEY BLAKE, No. 2:22-cv-2009 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ROSEVILLE POLICE DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff is a county prisoner proceeding pro se with a civil rights action pursuant to 42 19 U.S.C. § 1983. 20 I. Three Strikes Analysis 21 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF No. 2. 22 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 23 authorize the commencement and prosecution of any suit without prepayment of fees by a person 24 who submits an affidavit indicating that the person is unable to pay such fees. However, 25 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 26 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 27 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 28 1 unless the prisoner is under imminent danger of serious physical injury. 2 3 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 4 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 5 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 6 169 F.3d 1176, 1178 (9th Cir. 1999). 7 “[Section] 1915(g) should be used to deny a prisoner’s [in forma pauperis] status only 8 when, after careful evaluation of the order dismissing an action, and other relevant information, 9 the district court determines that the action was dismissed because it was frivolous, malicious or 10 failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen a 11 district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is 12 frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint 13 is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of 14 the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. 15 Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts 16 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it 17 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 18 amended complaint” regardless of whether the case was dismissed with or without prejudice. 19 Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 20 Inspection of other cases filed by plaintiff has led to the identification of at least three 21 cases that qualify as strikes. The court takes judicial notice of the following lawsuits filed by 22 plaintiff:1 23 //// 24 25 1 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 1. Blake v. Roseville Police Department,2 E.D. Cal. No. 2:18-cv-2335 JAM AC 2 (complaint dismissed with leave to amend for failure to state a claim (ECF No. 8), 3 case dismissed on January 16, 2019, for failure to file an amended complaint (ECF 4 No. 11)). 5 2. Blake v. Santa Clara Department of Corrections,3 N.D. Cal. No. 4:14-cv-2568 JSW 6 (first amended complaint dismissed without leave to amend on October 7, 2014, for 7 failure to state a claim upon which relief could be granted (ECF No. 11)). 8 3. Blake v. County of Santa Clara, N.D. Cal. No. 4:16-cv-1279 (complaint dismissed 9 with leave to amend for failure to state a claim (ECF No. 9), plaintiff failed to file an 10 amended complaint and the case was dismissed on October 24, 2016, for failure to file 11 a notice of change of address (ECF No. 14)). 12 All of the preceding cases were dismissed well in advance of the October 26, 20224 filing 13 of the instant action, and none of the strikes have been overturned. Therefore, this court finds that 14 plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent danger of 15 serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must have 16 alleged facts that demonstrate that he was “under imminent danger of serious physical injury” at 17 the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 18 19 2 The first page of the complaint reflects that plaintiff was in custody at the time the complaint was filed and identifies plaintiff using the same inmate number as is used in this case. 20 3 A search for cases filed by Shawncey Blake in the United States District Court for the Northern District of California returns several cases filed by an individual with that name but associated 21 with a different prisoner number (DUJ722). However, review of filings in those cases, coupled with plaintiff’s list of previous lawsuits in the instant complaint, sufficiently demonstrates to the 22 court that plaintiff is the same individual who filed the cases in the Northern District of 23 California. See ECF No. 1 at 2 (listing Blake v. San Francisco Police Department, JSW-2173, and Blake v. Santa Clara Department of Corrections as previously filed cases); Blake v. San 24 Francisco Police Department, N.D. Cal. No. 3:07-cv-2173 JSW; Blake v. Santa Clara Department of Corrections, N.D. Cal. No. 14-cv-0359, ECF No. 2 at 3 (listing N.D. Cal. No. 3:07-cv-2173 25 JSW as a previously filed case) and ECF No. 7 at 3 (updating address to include new prisoner 26 number DUJ722). 4 Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox 27 rule. Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing rule that a prisoner’s court document is deemed filed on the date the prisoner delivered the document to prison officials for 28 mailing). 1 | (“[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of 2 | the ‘imminent danger’ exception to § 1915(g).”). 3 The complaint alleges that in early 2020 plaintiff's vehicle was impounded after a traffic 4 || stop and later sold without notice. ECF No. 1 at 3. There are no allegations that would 5 || demonstrate an imminent risk of serious physical injury at the time of filing, and the undersigned 6 || will therefore recommend that plaintiff be required to pay the filing fee in full or have the 7 || complaint dismissed. 8 Il. Plain Language Summary of this Order for a Pro Se Litigant 9 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 10 || status unless you show the court that you were in imminent danger of serious physical injury at 11 || the time you filed the complaint. You have not shown that you were in imminent danger of 12 || serious physical injury and so it is being recommended that your motion to proceed in forma 13 || pauperis be denied and you be required to pay the whole filing fee at one time. 14 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 15 || assign a United States District Judge to this action. 16 IT IS FURTHER RECOMMENDED that plaintiff be ordered to pay the entire $402.00 in 17 || required fees within thirty days or face dismissal of the case. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 || after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 24 | (9th Cir. 1991). 25 || DATED: November 9, 2022 4 aes AA /, 26 ALLISON CLAIRE 37 UNITED STATES MAGISTRATE JUDGE 28