(PC) Cramer v. Director of Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW B. CRAMER, Case No.: 1:23-cv-01511-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DENY PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 14 DIRECTOR OF CORRECTIONS, et al., (Doc. 2) 15 Defendants. 14-DAY OBJECTION PERIOD 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Matthew B. Cramer is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. On October 23, 2023, Plaintiff filed an Application to Proceed In Forma Pauperis 20 (“IFP”). (Doc. 2.) 21 Because Plaintiff has accrued three or more “strikes” under section 28 U.S.C. § 1915 and 22 fails to show that he is under imminent danger of serious physical injury, the Court will 23 recommend that his motion be denied. 24 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 25 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides that “[i]n 26 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or 27 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 1 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 2 danger of serious physical injury.” 28 U.S.C. § 1915(g). 3 In determining whether a case counts as a “strike,” “the reviewing court looks to the 4 dismissing court’s action and the reasons underlying it…. This means that the procedural 5 mechanism or Rule by which the dismissal is accomplished, while informative, is not 6 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted). 7 II. DISCUSSION 8 The Court takes judicial notice1 of three prior lawsuits filed by Plaintiff in this Court and 9 another district court in this Circuit: 10 (1) Cramer v. Warner, No. 2:00-mc-00099-FCD-GGH (E.D. Cal.) (dismissed for failure to 11 state a claim on July 26, 2001); 12 (2) Cramer v. Multnomah Cty. Sheriff Dep’t, No. 3:02-cv-00141-JE (D. Or.) (dismissed for 13 failure to state a claim on June 25, 2002); and 14 (3) Cramer v. Schwarzenegger, No. 1:08-cv-01310-GSA (E.D. Cal.) (dismissed for failure to 15 state a claim on April 24, 2009). 16 A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g). 17 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). Because Plaintiff 18 has incurred at least three prior “strikes, and each was dismissed prior to the commencement of 19 the current action on October 23, 2023, Plaintiff is subject to the section 1915(g) bar. Moreover, 20 he is precluded from proceeding in forma pauperis in this action unless, at the time he filed his 21 complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes, 22 493 F.3d 1047, 1052-53 (9th Cir. 2007). 23 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 24 do not meet the imminent danger exception. Plaintiff alleges that certain correctional officers at 25 North Kern State Prison are abusing inmates assigned to the C-2 dorm. Plaintiff contends the 26 officers use C-2 inmate workers to assault and intimidate inmates assigned to the unit who have 27 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 been convicted of sexual offenses. Plaintiff states he is not a sexual offender, so he was left alone. 2 He asserts those inmates who did not immediately identify themselves as sexual offenders were 3 later identified as such by the correctional officers to other inmates and the inmate workers. All 4 those identified as sex offenders were assigned upper tier beds contrary to “control custody” 5 orders. The inmate workers, at the direction of the correctional officers, then sexually or 6 physically assaulted those inmates identified as sexual offenders. They also intimated those 7 inmates, including extorting the inmates by way of their canteen orders, stealing their property 8 and withholding or interfering with their food. Plaintiff also contends his outgoing legal mail is 9 being discarded by the officers. He further asserts one such inmate reported another brandishing a 10 knife, only to be labeled a snitch and a day later to be stabbed. Plaintiff contends he “has suffered 11 retaliatory abuses that include being stabbed as late as 2019-2020 at New Folsom” and that he is 12 “in fear of guards purposefully setting up Plaintiff with write-ups, being victimed [sic], harmed or 13 killed.” He asserts he “is now suffering PTSD fear of safety due to de-ja-vu- abuses that include 14 [19]95-to date injuries.” Plaintiff requests the “U.S. Magistrate to recognize these daily events,” 15 and for the United States Courts to “‘leverage’ to get CDCR officials to investigate.” 16 The “imminent danger” exception cannot be triggered solely by complaints of past harm. 17 See Andrews, 493 F.3d at 1053 (“The exception’s use of the present tense, combined with its 18 concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that the exception 19 applies if the danger existed at the time the prisoner filed the complaint.”); Allen v. Villanueva, 20 No. 3:20-cv-02334-WQH-WVG, 2021 WL 614995, at *2 (S.D. Cal. Feb. 16, 2021) (“conclusory 21 references to a past incident of force, without more, are insufficient to plausibly suggest Plaintiff 22 faced an ‘imminent danger of serious physical injury’ at the time he filed his Complaint”); Cohea 23 v. Davey, No. 1:19-CV-01281-LJO-SAB (PC), 2019 WL 5446490, at *1 (E.D. Cal. Oct. 24, 24 2019) (finding prisoner’s allegations of past assaults insufficient to show “imminent danger” 25 under 1915(g)), reconsideration denied, No. 1:19-CV-01281-NONE-SAB (PC), 2020 WL 26 5763929 (E.D. Cal. Sept. 28, 2020)); Blackman v. Mjening, No. 1:16-cv-01421-LJO-GSA-PC, 27 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of serious physical injury 1 279 F.3d 526, 531 (7th Cir. 2002) (the “imminent danger” exception is available “for genuine 2 emergencies,” where “time is pressing” and “a threat ... is real and proximate”). Thus, to the 3 extent Plaintiff alleges imminent danger based on past dangers, those do not qualify. 4 Further, the imminent danger presented to others—like the inmates identified as sexual 5 offenders in C-2—does not qualify as an imminent danger of serious physical injury to Plaintiff. 6 See Manago v. Cahow, No. 5:20-CV-01220 MCS (KES), 2021 WL 621093, at *1 (C.D. Cal. Jan. 7 6, 2021) (“While these other protective-custody inmates may plausibly face an imminent danger 8 of serious physical injury…, the Second Amended Complaint does not plausibly allege that 9 Plaintiff was targeted by Defendant for assault or is otherwise ‘under imminent danger of serious 10 physical injury’”). In fact, Plaintiff asserts he has been “left alone” because he has not been 11 convicted of sexual offenses. 12 Accepting as true Plaintiff’s assertion that his outgoing legal mail is being interfered with, 13 that circumstance does not qualify as an imminent danger of serious physical injury to Plaintiff. 14 Prophet v. Clark, No. CV 1-08-00982-FJM, 2009 WL 1765197, at *1 (E.D. Cal. June 22, 2009) 15 (finding prisoner’s access to the courts, interference with legal mail, and retaliation claims 16 insufficient to satisfy § 1915(b) exception for cases of “imminent danger of serious physical 17 injury”); see Bradford v. Ceballos, No. 1-20-cv-01821-SAB (PC), 2021 WL 53167, at *2 (E.D. 18 Cal. Jan. 6, 2021) (“Plaintiff’s general assertion that the alleged improper processing of his appeal 19 caused him harm fails to demonstrate that plaintiff was ‘under imminent danger of serious 20 physical injury’ when he filed the instant complaint”); Harris v. Torres, No. 1:19-cv-01171 JLT 21 (PC), 2020 WL 1557801, at *2 (E.D. Cal. Feb. 4, 2020) (plaintiff’s allegations regarding 22 confiscation of property do not meet the imminent danger exception); Simmons v. Kishbaugh, No. 23 2:19-cv-1650-TLN-EFB P, 2020 WL 1853038, at *1 (E.D. Cal. Apr. 13, 2020) (“plaintiff alleges 24 an access to courts claim … which fails to demonstrate that plaintiff was under imminent danger 25 of serious physical injury when he filed this action”); Thomas v. Parks, No. 1:16-cv-01393-LJO- 26 JLT (PC) 2018 WL 4373021, at *2 (E.D. Cal. Sept. 13, 2018) (“Plaintiff’s allegations in this 27 action are based largely on difficulties with obtaining copies of legal documents he prepared for 1 access to the courts, even if based on unconstitutional retaliatory motive, does not equate to 2 imminent danger of serious physical injury”). 3 To the extent Plaintiff relies on his present “PTSD fear of safety” to assert imminent 4 danger, Plaintiff’s assertions are insufficient to establish imminent danger of serious physical 5 injury. See, e.g., Henderson v. Chambers, No. CV 323-022, 2023 WL 2482223, at *2 (S.D. Ga. 6 Mar. 10, 2023) (“Plaintiff’s implied, conclusory allegations of potential, future harm because 7 ‘corrupt’ prison officials are selling drugs to other inmates inside the prison are insufficient to 8 establish imminent danger of serious physical injury to Plaintiff”); Young v. Atchley, No. 20-CV- 9 08349-LHK, 2021 WL 9166404, at *7 (N.D. Cal. Aug. 20, 2021) (“The Court finds that 10 plaintiff’s charge of a statewide conspiracy [to murder him] is implausible, and therefore plaintiff 11 may not proceed under the imminent danger exception”); Jones v. Pollard, No. 3:20-cv-00805- 12 GPC-AGS, 2020 WL 7260667, at *2 (S.D. Cal. Dec. 10, 2020) (plaintiff’s “generalized claims of 13 being ‘harassed’ and ‘detested by many officials (upper)’ because he has filed many ‘legal 14 complaints against CDC[R]’ in the past…are also insufficient to plausibly show the ‘imminent 15 danger of serious physical injury’ required”); Patrick v. Altshuler, No. 2:17-CV-1046 AC P, 2017 16 WL 4539273, at *5 (E.D. Cal. Oct. 11, 2017) (finding prisoner’s claims of “[f]ear with trust 17 issues” and “painful” “[a]buse[s] of power” were insufficient to demonstrate he was “under 18 imminent danger of serious physical injury” under § 1915(g)); Manago v. Beard, No. 1:16-cv- 19 00293-LJO-SAB (PC), 2016 WL 4191893, at *2 (E.D. Cal. Aug. 8, 2016) (“Plaintiff’s vague and 20 conclusory allegations relating to an ‘ongoing criminal conspiracy’ among prison staff fails to 21 present imminent danger exception to section 1915(g)”); Tierney v. Abercrombie, No. 12-00293 22 LEK/KSC, 2012 WL 1983264, at *2 (D. Haw. May 31, 2012) (“Although Plaintiff alleges that he 23 is claustrophobic, is having nightmares, and lives in fear for his life, these vague and completely 24 speculative fears are insufficient to support a claim of imminent danger of serious physical 25 injury”); Pauline v. Mishner, No. 09-00182 JMS/KSC, 2009 WL 1505672, at *3 (D. Haw. May 26 28, 2009) (“Plaintiff’s vague and conclusory allegations of possible future harm to himself or 27 others are insufficient to trigger the ‘imminent danger of serious physical injury’ exception to 1 In sum, Plaintiff is precluded from proceeding IFP in this action because at the time he 2 | filed his complaint he was not under imminent danger of serious physical injury. Andrews, 493 3 | F.3d at 1052-53. 4] I. ORDER AND RECOMMENDATIONS 5 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a 6 | district judge to this action and RECOMMENDS that: 7 1. Plaintiff's motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 8 2. Plaintiff be ordered to pay the $402.00 filing fee in full within 30 days. 9 These Findings and Recommendations will be submitted to the United States District 10 | Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1). Within 14 days of the date of 11 | service of these Findings and Recommendations, Plaintiff may file written objections with the 12 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 13 | Recommendations.” Plaintiff's failure to file objections within the specified time may result in 14 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 15 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 | IT IS □□ ORDERED. '7 | Dated: _ October 31, 2023 | br Pr 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28