(PC) Trevino v. Burke ( 2023 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ROBERT TREVINO, Case No. 2:21-cv-01415-DJC-JDP (PC) 13 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION TO 14 v. REVOKE IN FORMA PAUPERIS STATUS BE GRANTED 15 G. BURKE, et al., OBJECTIONS DUE IN 14 DAYS 16 Defendants. ECF No. 29 17 18 19 Plaintiff Robert Trevino, a state prisoner, filed this action alleging that defendants violated 20 his First Amendment right of access to the courts by failing to provide him with copying services 21 in the law library. Now defendants have filed a motion to revoke his in forma pauperis status, 22 arguing that he has accumulated at least three strikes. ECF No. 29. Plaintiff has filed an 23 opposition, ECF No. 33, and defendants have filed a reply, ECF No. 35. After review of the 24 pleadings, I recommend that defendants’ motion be granted. 25 26 27 28 1 Under 28 U.S.C. § 1915(g), a prisoner plaintiff may not proceed in forma pauperis if he 2 has filed three or more cases that have been dismissed for failure to state a claim upon which 3 relief may be granted. Such “three-strikers” must pay the filing fee unless they allege that they 4 are in imminent physical danger. Defendants correctly argue that plaintiff has had at least three 5 cases dismissed for failure to state a claim. 6 In Trevino v. Travers, No. 02-15046 (9th Cir. 2002), ECF No. 30 at 41 (Ex. D),1 plaintiff’s 7 application to proceed in forma pauperis on appeal to the Ninth Circuit was rejected as not taken 8 in good faith. Plaintiff never paid the filing fee, and his appeal was dismissed for failure to 9 prosecute. As defendants point out, even though the dismissal was for failure to prosecute, this 10 counts as a “strike” within the meaning of § 1915(g). See O’Neal v. Price, 531 F.3d 1146, 1153 11 (9th Cir. 2008) (“[A] complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court 12 styles such dismissal as denial of the prisoner's application to file the action without prepayment 13 of the full filing fee.”); see also Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (equating a 14 lack of “good faith” with frivolity). 15 The same happened in Trevino v. Thomas, No. 07-17171 (9th Cir. 2008), ECF No. 30 at 44- 16 46 (Ex. E). 17 Then, in 2010, plaintiff filed Trevino v. Engler, et al., No. 10-CV-00620 (C.D. Cal. 2010) 18 and Trevino v. Spearman, et al., No. 10-CV-03637 (C.D. Cal. 2010). In both cases, the court 19 found that plaintiff’s initial complaint failed to state a cognizable claim and gave him leave to 20 amend; he did not avail himself of that opportunity in either case and both cases were dismissed 21 on that basis. ECF No. 30 at 52-58 (Ex. F); 68-72 (Ex. G). Such dismissals amount to strikes. 22 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[D]istrict courts may routinely give 23 pro se plaintiffs opportunities to amend their complaints regardless of how meritless their claims 24 may appear. A prisoner may not avoid incurring strikes simply by declining to take advantage of 25 26 27 1 Defendants ask that I take judicial notice of the case documents associated with plaintiff’s strikes. I will do so. See Rey’n Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 28 n.6 (9th Cir. 2006) (a court may take judicial notice of court documents). 1 these opportunities to amend.”). 2 For his part, plaintiff has not offered any argument that these cases did not constitute 3 strikes. Instead, he argues that he should be permitted to proceed in forma pauperis under the 4 imminent danger exception. ECF No. 33 at 1-2. In support, he cites to alleged instances when 5 prison officials retaliated against him for his litigiousness. Plaintiff argues that, in 2004 and 6 2022, he was assaulted by other inmates in what he believes were orchestrated attacks. Id. at 2. 7 In 2021, an officer fabricated information that damaged his parole chances. Id. at 3. These 8 assertions do not allow plaintiff to benefit from the exception, however, because they do not bear 9 any nexus to the claims at issue in this case. Succeeding on the claims here, which concern 10 adequate access to the law library and its resources, would provide no redress for these new 11 allegations. See Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022) (adopting Second Circuit nexus 12 test directing courts to consider “(1) whether the imminent danger of serious physical injury that a 13 three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and 14 (2) whether a favorable judicial outcome would redress that injury”). 15 Accordingly, it is RECOMMENDED that defendants’ motion to revoke in forma pauperis 16 status, ECF No. 29, be GRANTED, and that plaintiff be directed to tender the full filing fee 17 within twenty-one days of any order adopting these recommendations. 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)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be served and filed within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 26 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 27 28 1 | 1718 SO ORDERED. 3 ( — Dated: __April 24, 2023 ssn (aoe 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28