(PC) Bradford v. Spangler ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, No. 2:24-cv-00582 AC 12 Plaintiff, 13 v. ORDER AND 14 G. SPANGLER, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF No. 6. 19 The complaint also includes requests for a temporary restraining order and a preliminary 20 injunction. Id. at 7-8. The case was referred to a United States Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 For the reasons explained below, the undersigned recommends that plaintiff’s motion to 23 proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g), and that plaintiff be 24 ordered to pay the filing fee in full prior to proceeding any further with this action. In addition, it 25 is recommended that plaintiff’s motions for a preliminary injunction and temporary restraining 26 order be denied as premature. 27 I. Three Strikes Rule 28 Section 1915(g) of Title 28 of the United States Code provides that: 1 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 2 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 3 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 4 prisoner is under imminent danger of serious physical injury. 5 “It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court 6 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 7 1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be 8 used to deny a prisoner’s in forma pauperis status only when, after careful evaluation of the 9 order dismissing an action, and other relevant information, the district court determines that the 10 action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. 11 King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a district court disposes 12 of an in forma pauperis complaint ‘on the grounds that [the claim] is frivolous, malicious, or 13 fails to state a claim upon which relief may be granted,’ such a complaint is ‘dismissed’ for 14 purposes of § 1915(g) even if the district court styles such dismissal as denial of the prisoner’s 15 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 16 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts as a strike 17 under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it fails to 18 state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 19 amended complaint” regardless of whether the case was dismissed with or without prejudice. 20 Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 21 An inmate who has accrued three strikes is precluded from proceeding in forma pauperis 22 unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To 23 satisfy the exception, plaintiff must have alleged facts that demonstrate that he was “under 24 imminent danger of serious physical injury” at the time of filing the complaint. Andrews v. 25 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the 26 filing of the complaint that matters for purposes of the ‘imminent danger’ exception to § 27 1915(g).”). “[T]he imminent danger exception to the PLRA three-strikes provision requires a 28 nexus between the alleged imminent danger and the violations of law alleged in the complaint.” 1 Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). 2 II. Plaintiff’s Prior Strikes 3 A review of court records reveals that on October 14, 2015, in the Eastern District of 4 California, plaintiff was declared a three-strikes litigant in Bradford v. German, No. 1:15-cv-111 5 LJO BAM P (E.D. Cal. Oct. 14, 2015). In that case, the court determined that the following 6 dismissed cases constituted strikes: 7 Bradford v. White, No. 2:98-cv-0180 FCD JFM P (E.D. Cal. June 3, 1999) (dismissed for frivolousness and as barred by the statute of 8 limitations); 9 Bradford v. Terhune, No. 1:04-cv-5496 AWI DLB P (E.D. Cal. Oct. 21, 2004) (dismissed for failure to state a claim); 10 Bradford v. Superior Court of California, No. 1:07-cv-1031 OWW 11 LJO P (E.D. Cal. Aug. 21, 2007) (dismissed for frivolousness); 12 Bradford v. Grannis, No. 2:05-cv-0862 FCD DAD P (E.D. Cal. Sept. 30, 2007) (dismissed for frivolousness and failure to state a claim); 13 Bradford v. Amaya, No. 1:08-cv-0211 OWW GSA P (E.D. Cal. Apr. 14 17, 2008) (dismissed for failure to state a claim); and 15 Bradford v. Terhune, No. 1:04-cv-5261 LJO SMS P (E.D. Cal. May 9, 2008) (dismissed for failure to state a claim). 16 17 See Bradford v. German, Case No. 1:15-cv-111, ECF Nos. 4, 5.1 18 The court takes judicial notice of these earlier-filed lawsuits.2 Each of them was 19 dismissed well before the instant action was filed and none of the strikes have been overturned on 20 appeal. Therefore, the undersigned finds that plaintiff is precluded from proceeding in forma 21 pauperis unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 22 23 1 The court also listed as a strike Bradford v. Terhune, No. 2:02-cv-1859 FCD GGH P (E.D. Cal. June 18, 2003). That case had been dismissed as barred by the three strikes rule, without a 24 finding of frivolity. Case No. 2:02-cv-1859 at ECF Nos. 17, 21. It therefore does not count as an independent strike. See El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016). 25 2 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 III. Imminent Danger Exception 2 After reviewing the complaint, the only allegations that fall within the imminent danger 3 category are plaintiff’s assertion that there is “an active an[d] ongoing conspiracy to murder [and] 4 commit murder against him….” ECF No. 1 at 2. This is an entirely conclusory assertion, and 5 there are no facts in the complaint that support plaintiff’s allegation that defendants are 6 attempting to murder him. Accordingly, plaintiff’s assertion of imminent danger is speculative 7 and does not meet the standard for the imminent danger exception. See Andrews v. Cervantes, 8 493 F.3d 1047, 1055 (9th Cir. 2007). Additionally, this allegation bares no relationship to the 9 claims in the complaint which are based on the confiscation of plaintiff’s property and mail by 10 prison officials. See ECF No. 1 at 2-3; see also Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). 11 For all these reasons, plaintiff does not demonstrate that he meets the imminent danger exception 12 to the three strikes rule. 13 IV. Plaintiff’s Motion for a Preliminary Injunction/Temporary Restraining Order 14 The complaint also includes a motion for a preliminary injunction and temporary 15 restraining order. ECF No. 1 at 4-5. Plaintiff specifically requests the return of his property; the 16 payment of his medical expenses for 50 years; the restoration of his good time credit; permission 17 to reside in Sydney, Australia; the provision of a U.S. passport; the expungement of his criminal 18 and prison record; and, the payment for two witnesses to accompany him to Australia. ECF No. 1 19 at 5. At this time, the motion for injunctive relief is premature because plaintiff may not have the 20 funds to proceed with this action. Therefore, the undersigned recommends that the motion for 21 injunctive relief be denied as premature. 22 CONCLUSION 23 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 24 matter to a district court judge. 25 IT IS FURTHER RECOMMENDED that: 26 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 6) be denied; 27 2. Plaintiff be ordered to pay the filing fee in its entirety in order to proceed as a result of 28 being declared a three-strikes litigant within the meaning of 28 U.S.C. § 1915(g); and 1 3. Plaintiff's motion for a preliminary injunction and temporary restraining order be 2 || denied as premature. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 || objections shall be served and filed within fourteen days after service of the objections. The 9 || parties are advised that failure to file objections within the specified time may waive the right to 10 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 || DATED: May 20, 2024 ~ 12 thin Chane ALLISON CLAIRE 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28