(PC) Roberts v. CSP-Sacramento ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBERTS, No. 2:22-CV-1831-DJC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CARUSO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendants’ unopposed motion to revoke 19 Plaintiff’s in forma pauperis status, ECF No. 22. 20 The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as 21 follows: 22 In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or 23 detained . . ., brought an action . . . in a court of the United States that was dismissed on the ground that it is frivolous, malicious, or fails to state a 24 claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 25 Id. 26 27 Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the 28 reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma 1 pauperis unless the imminent danger exception applies. The alleged imminent danger must exist 2 at the time the complaint is filed. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 3 2007). A prisoner may meet the imminent danger requirement by alleging that prison officials 4 continue with a practice that has injured him or others similarly situated in the past, or that there 5 is a continuing effect resulting from such a practice. See Williams v. Paramo, 775 F.3d 1182, 6 1190 (9th Cir. 2014). 7 Dismissals for failure to exhaust available administrative remedies generally do 8 not count as “strikes” unless the failure to exhaust is clear on the face of the complaint. See 9 Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). Dismissed habeas petitions do not count 10 as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Where, 11 however, a dismissed habeas action was merely a disguised civil rights action, the district court 12 may conclude that it counts as a “strike.” See id. at n.12. 13 When in forma pauperis status is denied, revoked, or otherwise unavailable under 14 § 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the 15 action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth 16 Circuit reviewed a district court’s screening stage dismissal of a prisoner civil rights action after 17 finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128 18 F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than 19 simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the 20 plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the 21 Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded 22 that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes” 23 provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant 24 an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated 25 that the appellant “may resume this appeal upon prepaying the filing fee.” 26 / / / 27 / / / 28 / / / 1 This conclusion is consistent with the conclusions reached in at least three other 2 circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status 3 under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically 4 held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because 5 “[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original). 6 The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th 7 Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002). 8 In their motion, Defendants identify two prior Eastern District of California cases 9 filed by Plaintiff in which the court revoked Plaintiff’s in forma pauperis status because Plaintiff 10 had three or more prior “strikes.” See ECF No. 22-1, pgs. 3-4 (citing Roberts v. Richer, 2:21-cv- 11 0714-AWI-HBK-P, and Roberts v. California, 1:22-cv-0131-HBK-P). The determinations in 12 these cases that Plaintiff has had three or more prior actions dismissed for reasons qualifying as a 13 “strike” apply in the current action. The Court, therefore, finds that Plaintiff has had three or 14 more prior “strikes.” 15 The only issue remaining is whether Plaintiff may escape the “three strikes” 16 provision of the PLRA because the current action alleges imminent danger of serious injury at the 17 time the action was filed. The Court finds that Plaintiff does not qualify for the imminent danger 18 exception in this case. In particular, Plaintiff alleges in this action that he was injured as the 19 result of improper conduct by Defendants on September 13, 2022. There are no allegations of 20 ongoing, let alone, imminent danger resulting from this incident. This situation is analogous to 21 the situation presented in Roberts v. California, where Plaintiff had alleged various correctional 22 officers used excessive force on a single date. In Roberts v. California, cited above as a case in 23 which it was determined that Plaintiff has had three or more prior “strikes,” the court also 24 determined that the imminent danger exception did not apply. The Court so finds in this case on 25 similar facts. 26 / / / 27 / / / 28 / / / ] Based on the foregoing, the undersigned recommends that Defendants’ unopposed 2 || motion to revoke Plaintiffs in forma pauperis status, ECF No. 22, be GRANTED and that this 3 || action be DISMISSED without prejudice to refiling upon prepayment of fees therefor. 4 These findings and recommendations are submitted to the United States District 5 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 6 || after being served with these findings and recommendations, any party may file written objections 7 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 || Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 | Dated: November 6, 2023 Ss..c0_, DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28