(PC) Roberts v. White ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID NATHANIEL ROBERTS, Case No. 1:21-cv-00167-JLT-HBK (PC) 12 Plaintiff, ORDER VACATING ORDER GRANTING IN FORMA PAUPERIS MOTION 13 v. (Doc. No. 7) 14 WHITE, MUNOZ, BREWSTER, TAHT, MORENO, RICHER, CALVINO, FINDINGS AND RECOMMENDATIONS TO 15 PLASCENSIO, BROGDON, PRECIADO DENY PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS UNDER 16 Defendants. 28 U.S.C. § 1915 (g) 17 (Doc. No. 4) 18 FOURTEEN-DAY OBJECTION PERIOD 19 20 This matter comes before the Court upon re-review of the case docket. On February 17, 21 2021, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis. (Doc. No. 7). 22 After taking judicial notice of its files, the Court notes that Plaintiff has at least three dismissals 23 that constitute a strike and finds the Complaint does not establish that Plaintiff meets the 24 imminent danger exception. As a result, the undersigned revokes the February 17, 2021 Order 25 and recommends the District Court deny Plaintiff’s motion to proceed in forma pauperis. 26 BACKGROUND AND FACTS 27 On February 22, 2021, Plaintiff initiated this action by filing a pro se civil rights 28 complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). The Complaint consists of 1 six pages and alleges three claims stemming from events that allegedly took place at Wasco State 2 Prison Reception Center. (See generally Id.). The Complaint identifies the following as 3 Defendants: Warden White, Sergeant Munoz, Sergeant Taht, Lieutenant Brewster, Moreno, 4 Richer, Calvino, Plascensio, Brogdon, and Preciado. (Id. at 1-2). 5 In his first claim, Plaintiff’s alleges Defendants Preciado, Moreno, Calvino, and Richer 6 spat and urinated in his food, and poisoned and added “foreign bodies” to his food on an 7 unspecified date. (Id. at 2). As a result, Plaintiff suffered from diarrhea, vomiting, stomach 8 aches, nauseas, headaches, dizziness, and “other strange abnormal symptoms.” (Id.) Plaintiff 9 states Sergeant Munoz, Sergeant Taht, and Lieutenant Brewster did nothing to address the 10 problem. (Id.). 11 In his second claim, Plaintiff faults Defendants Plascensio and Brogdon’s for refusing to 12 transfer Plaintiff from Wasco despite the COVID-19 restrictions being lifted. (Id. at 4). In 13 support, Plaintiff alleges Plascensio and Brogdon purposely “mixed-up” Plaintiff’s e-file and 14 records to prevent him his transfer. (Id.) 15 In his third claim, Plaintiff alleges unspecified Defendants are preventing him from 16 attending hearings in “Delano Count” by falsely reporting that he refuses to attend the hearings. 17 (Id. at 5). As relief, Plaintiff seeks to “press charges,” monetary damages, and to be transferred to 18 a federal prison. (Id. at 6). 19 APPLICABLE THREE STRIKE LAW 20 The “Three Strikes Rule” states: 21 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 22 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury. 25 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 26 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 27 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 28 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 1 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 2 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 3 2007). 4 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 5 the order dismissing the case must have been docketed before plaintiff initiated the current case. 6 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 7 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 8 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed 9 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g); see also Washington v. 10 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count 11 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts 12 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to 13 state a claim to count was with or without prejudice, as both count as a strike under § 1915(g). 14 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint 15 requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis 16 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 17 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 18 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 19 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 20 Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger 21 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial 22 allegations” liberally to determine whether the allegations of physical injury are plausible. 23 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). 24 In order to avail oneself of this narrow exception, “the PLRA requires a nexus between 25 the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray 26 v. Lara, 31 F. 4th 692, 701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding whether 27 such a nexus exists, we will consider (1) whether the imminent danger of serious physical 28 injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct 1 asserted in the complaint and (2) whether a favorable judicial outcome would redress that 2 injury.” Id. (adopting test as articulated by Second Circuit, citation omitted). The three-strikes 3 litigant must meet both requirements of the nexus test to proceed. Id. 4 Assertions of imminent danger may be rejected as overly speculative, fanciful, or 5 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly 6 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 7 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine 8 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 9 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a 10 plaintiff at some earlier time are immaterial, as are any subsequent conditions. Cervantes, 493 11 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). 12 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. § 13 1915(g), some courts have found that the proper procedure is to dismiss the case without 14 prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled. 15 Hardney v. Hampton, 2021 WL 4896034, at *4 (E.D. Cal. Oct. 20, 2021), report and 16 recommendation adopted, 2021 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v. 17 Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Campbell v. Vance, 2005 WL 3288400, at *1 18 (E.D. Cal. Nov. 30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the 19 filing fee before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, Case No. 20 1:21-cv-320-NONE-HBK, 2021 WL 1339146, report and recommendation adopted in part and 21 rejected in part, 2021 WL 2227810 (E.D. Cal. June 2, 2021)(rejected immediate dismissal, 22 instead permitting 30 days to pay filing fee, and if not, then requiring dismissal); Trujillo Cruz v. 23 White, 2019 WL 4917192 (Oct. 4, 2019), report and recommendation adopted in part and 24 rejected in part, Trujillo-Cruz v. White, 2020 WL 1234201 (E.D. Cal. March 13, 2021) (rejected 25 immediate dismissal, instead permitting 30 days to pay filing fee, and if not then requiring 26 dismissal). 27 The preceding law must be taken in the context of congressional intent when enacting the 28 Prison Litigation Reform Act. As the United States Supreme Court noted in Lomax, “[t]he point 1 of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner suits.” Lomax, 2 140 S.Ct. at 1726. And the three strikes provision, in particular, was aimed “to disincentivize 3 frivolous prisoner litigation.” Hoffman v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019). 4 ANALYSIS 5 A. Plaintiff Has Three or More Qualifying Strikes 6 A review of the Pacer Database1 reveals Plaintiff has filed at least 45 civil actions or 7 appeals in a court of the United States. Although not exhaustive, for purposes of these findings 8 and recommendations, each of the following cases are properly deemed qualifying § 1915(g) 9 strikes and each was entered before Plaintiff commenced the instant action: 10 11 Date of Order Case Style Disposition Roberts v. Henderson, et al., Order adopting findings and 12 March 7, 2019 Case No. 1:19-cv-00091- recommendations to dismiss 13 DAD-EPG (E.D. Cal. 2019) case as duplicative. Roberts v. Riverside County Order adopting findings and April 15, 2019 14 Superior Courts, Case No. recommendations to dismiss 5:19-cv-00446-VBF-RAO complaint as frivolous. 15 (C.D. Cal. 2019) Roberts v. KVSP Order adopting findings and 16 November 25, 2019 Investigation Unit, Case No. recommendations to dismiss 17 1:19-cv-01055-AWI-SAB amended complaint for a (E.D. Cal. 2019) failure to state a claim. 18 Roberts v. Riverside County Order adopting findings and February 12, 2020 Superior Courts of recommendations to dismiss 19 California and CDC Trust complaint for failure to state a 20 Office, Case No. 5:20-cv- claim. 00197-VBF-RAO (C.D. 21 Cal. 2020) Roberts v. Huckleberry, et Order adopting findings and 22 March 10, 2020 al., Case No. 1:18-cv- recommendations to dismiss 01237-DAD-SAB (E.D. amended complaint for a 23 Cal. 2018) failure to state a claim. 24 25 As evidenced above, Plaintiff has had three or more qualifying strikes for purposes of § 1915(g). 26 27 1 See http://pacer.usci.uscourts.gov. 28 1 B. The Imminent Danger Exception Does Not Apply 2 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the 3 Complaint contains plausible allegations that Plaintiff is in danger of serious physical injury as of 4 the date the complaint is filed. Andrews, 493 F.3d at, 1052-53. Plaintiff does not allege that he is 5 in imminent danger. And, liberally construing the Complaint, the undersigned finds it contains no 6 plausible allegations sufficient to allege Plaintiff was in imminent danger of serious physical 7 injury at the time he filed the action to invoke the § 1915(g) exception. (See generally Doc. No. 8 1). 9 While Plaintiff alleges Defendants poisoned, spat and urinated in his food, his allegations 10 are speculating and fanciful. See Stine v. Federal Bureau of Prisons, 2015 WL 5255377, *6 11 (E.D. Cal. Sep. 9, 2015) (“[o]verly speculative and fanciful allegations do not plausibly show 12 imminent danger”) (citing Andrews, 493 F.3d at 1057 n. 11). Plaintiff provides no factual basis in 13 support of these allegations. See Williams v. Gomez, 2011 U.S. Dist. LEXIS 146984, at *4 (E.D. 14 Cal. Dec. 20, 2011) (finding that Plaintiff was not in imminent danger because her allegations that 15 her food was being poisoned were not plausible); see also Andrews, 493 F.3d at 1057 n. 11 16 (“[A]ssertions of imminent danger of less obviously injurious practices may be rejected as overly 17 speculative or fanciful, when they are supported by implausible or untrue allegations that the 18 ongoing practices has produced past harm”) (other citations omitted). Further, Plaintiff does not 19 allege that he requested and was denied medical attention for any of the physical symptoms he 20 experienced form the alleged poisoning. 21 Accordingly, the Complaint fails to contain plausible allegations that Plaintiff was in any 22 imminent danger of serious physical injury at the time the complaint was filed. Plaintiff has not 23 satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff must pay the 24 $402.00 filing fee if he wishes to litigate this action. 25 Accordingly, it is ORDERED: 26 The Court’s VACATES its February 7, 2021 Order (Doc. No. 7). 27 It is further RECOMMENDED: 28 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 4) be DENIED under § 1 | 1915(g) due to his three-strike status and failure to meet the imminent danger exception. 2 2. This action be DISMISSED without prejudice automatically if Plaintiff fails to pay 3 | the filing fee after the time provided by the district court expires. 4 NOTICE TO PARTIES 5 These findings and recommendations will be submitted to the United States district judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 | days after being served with these findings and recommendations, a party may file written 8 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 | Findings and Recommendations.” Parties are advised that failure to file objections within the 10 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 11 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 Dated: _ April 11, 2023 Mile. Wh. foareh Zaskth 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28