Cleveland v. Mandich ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 IVAN V. CLEVELAND, Case No. 21-CV-03993-LHK 13 Plaintiff, ORDER TO SHOW CAUSE 14 v. 15 L. MANDICH, et al., Re: Dkt. No. 10 16 Defendants. 17 18 Plaintiff filed a pro se civil rights complaint under 42 U.S.C. § 1983 (“Complaint”), and an 19 in forma pauperis motion (“IFP”). Dkt. Nos. 1, 2. The Court informed plaintiff that he had failed 20 to file a complete IFP motion and that he needed to complete an IFP motion within twenty-eight 21 days or face dismissal. Dkt. No. 3. After plaintiff failed to respond, the Court dismissed this 22 action. Dkt. No. 4. Following a request from plaintiff, Dkt. No. 6, the Court reopened this action, 23 Dkt. No. 7. The Court gave plaintiff two extensions of time to complete his IFP motion. See Dkt. 24 Nos. 7, 9. Plaintiff now has completed his IFP motion. Dkt. No. 10. 25 Because plaintiff has three strikes under 28 U.S.C § 1915(g), the Court orders plaintiff to 26 show cause why his motion for leave to proceed IFP should not be denied, and this action should 27 not be dismissed pursuant to section 1915(g). 1 I. BACKGROUND 2 Plaintiff is incarcerated at the Correctional Training Facility (“CTF”) in Soledad, 3 California. Compl. at 1.1 4 Plaintiff filed the Complaint on May 16, 2021. See id. at 21 (stating, under penalty of 5 perjury, that plaintiff placed the Complaint into the prison mail system on this date); see also 6 Houston v. Lack, 487 U.S. 266, 270-71 (1988) (announcing the prison mailbox rule). He sues six 7 defendants: Nurses Mandich, Simon, and Perry; Chief Nurse Executive Mahoi (“CNE Mahoi”); 8 Correctional Officer Jones; and Warden “Conick.” Compl. at 2, 7. 9 Plaintiff represents that the Covid-19 virus was introduced to CTF sometime in 2020. See 10 id. at 10. Sometime “[i]n November of 2020, the plaintiff tested positive for covid-19 and was 11 moved to G-Wing with other infected inmates.” Id. 12 On November 26, 2020, plaintiff began to suffer respiratory problems. See id. An 13 “assigned building officer” sent plaintiff to the medical unit. Id. 14 When plaintiff arrived at the medical unit, Correctional Officer Jones, the “desk officer,” 15 logged plaintiff’s arrival and sent plaintiff to an examination room. See id. at 10-11. Nurse 16 Mandich subsequently entered the examination room, but refused to treat plaintiff. See id. at 11. 17 Nurse Mandich sent plaintiff back to G-Wing. See id. Plaintiff returned to his cell. See id. 18 On November 27, 2020, non-defendant Nurse Lopez discovered plaintiff in distress. See 19 id. Nurse Lopez called for medical assistance, and plaintiff was transported to the hospital. See 20 id. Plaintiff was diagnosed with “Covid Pneumonia,” and remained in the hospital until December 21 7, 2020. See Compl., Ex. A at 4. 22 CNE Mahoi investigated Nurse Mandich’s decision not to treat plaintiff on November 26, 23 2020. See Compl. at 3, 6-9, 13-14. CNE Mahoi concluded that Nurse Mandich “did nothing 24 wrong.” Id. at 13. Plaintiff contends that CNE Mahoi, Correctional Officer Jones, and Nurses 25 Simon and Perry conspired to cover up Nurse Mandich’s wrongdoing. Compl. at 7-9. 26 27 1 Because plaintiff’s page numbering is inconsistent, the Court uses the page numbers assigned by the Electronic Court Filing System. 1 Plaintiff contends that Nurse Mandich acted with deliberate indifference to plaintiff’s 2 medical needs when Nurse Mandich refused to treat plaintiff on November 26, 2020. See Compl. 3 at 15-16. Plaintiff contends that CNE Mahoi, Correctional Officer Jones, and Nurses Simon and 4 Perry acted with deliberate indifference when they conspired to cover up Nurse Mandich’s 5 wrongdoing. See id. at 16-17. Plaintiff does not identify any actions taken, or left undone, by the 6 Warden of CTF. See generally, id. 7 As relief, plaintiff asks for “compensatory damages” of $95,000; for “punitive damages” of 8 $500,000; and for Nurse Mandich to be investigated. See id. at 18, 3. 9 II. LEGAL STANDARD 10 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 11 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 12 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 13 facility, brought an action or appeal in a court of the United States that was dismissed on the 14 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 15 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 16 Relying on the statute’s command that “in no event” may such a prisoner proceed, the United 17 States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) explained that this bar is triggered 18 by a prisoner’s history of filing frivolous litigation rather than by the merits of the current action. 19 See El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original). 20 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 21 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 22 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 23 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 24 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 25 1121 (9th Cir. 2005) (citation omitted). Dismissal of an action under section 1915(g) occurs if 26 “the district court determines that the action was dismissed because it was frivolous, malicious or 27 failed to state a claim.” Id. 1 Andrews requires that the prisoner be given notice of the potential applicability of section 2 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 3 ultimate burden of persuasion to show that section 1915(g) does not bar pauper status in this case. 4 Id. Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but 5 requires the court to notify the prisoner of the earlier dismissals it considers support a section 6 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before dismissal 7 of the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner cannot 8 proceed with his action as a pauper under section 1915(g), but he still may pursue his claims if he 9 pays the full filing fee at the outset of the action. 10 III. ANALYSIS 11 For the reasons explained below, plaintiff does not appear to be entitled to proceed IFP. 12 A. Plaintiff has three strikes. 13 A review of the dismissal orders in plaintiff’s prior prisoner actions reveals that he has had 14 at least three such cases dismissed on the ground that they were frivolous, malicious, or failed to 15 state a claim upon which relief may be granted. Plaintiff is now given notice that the court 16 believes the following federal district court dismissals may be counted as dismissals for purposes 17 of section 1915(g): 18 1. Cleveland v. Stokes, No. C 05-3497 JF (PR) (N.D. Cal. Apr. 29, 2008) (order of 19 dismissal for failure to state a claim upon which relief may be granted); 20 2. Cleveland v. Kane, No. C 06-3252 JF (PR) (N.D. Cal. Nov. 2, 2007) (same); and 21 3. Cleveland v. Brown, No. C 14-4277 CRB (PR) (N.D. Cal. Apr. 20, 2015) (same, 22 dismissing initial complaint for failure to state a claim and dismissing case after 23 plaintiff failed to amend). 24 The Court has evaluated each of these cases based on their dismissal orders. See Andrews, 398 25 F.3d at 1120. Under precedent from the Ninth Circuit, each dismissal counts as a strike. See 26 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (dismissal for 27 failure to state a claim constitutes a strike); Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 1 2017) (where complaint is dismissed with leave to amend, and prisoner fails to amend, the 2 dismissal counts as a strike). 3 Because of his history of filing frivolous actions, plaintiff simply is not entitled to proceed 4 in forma pauperis. 5 B. Plaintiff is not in imminent danger. 6 Under the law of this Circuit, a plaintiff must be afforded an opportunity to persuade the 7 court that section 1915(g) does not bar IFP status for him. See Andrews, 398 F.3d at 1120. As 8 discussed below, plaintiff in the instant case is not entitled to proceed under the imminent danger 9 exception. 10 Despite having incurred three strikes pursuant to section 1915(g), a plaintiff may still be 11 able to proceed IFP if he can show that he is in imminent danger of serious physical injury. The 12 plaintiff has the burden of proving that he satisfies this exception. The plain language of the 13 imminent danger clause indicates that “imminent danger” is to be assessed at the time of the filing 14 of the complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). 15 It is sufficient if the complaint “makes a plausible allegation that the prisoner faced ‘imminent 16 danger of serious physical injury’ at the time of filing.” Id.; see, e.g., id. at 1055 (allegation that 17 plaintiff was at risk of contracting HIV or hepatitis C was sufficient to bring his complaint within 18 the imminent danger exception); cf. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (no 19 ongoing danger where plaintiff had been placed in administrative segregation following physical 20 assaults and before he filed his complaint). In the Ninth Circuit, “requiring a prisoner to allege[] 21 an ongoing danger . . . is the most sensible way to interpret the imminency requirement.” Andrews 22 II, 493 F.3d at 1056 (internal quotation marks omitted). 23 In addition, the danger must be “clearly related to [the] initial complaint.” Williams v. 24 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (discussing nexus requirement). The Second Circuit 25 has held that “the complaint of a three-strikes litigant must reveal a nexus between the imminent 26 danger it alleges and the claims it asserts, in order for the litigant to qualify for the ‘imminent 27 danger’ exception of § 1915(g).” Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). The 1 Ninth Circuit also has recognized that the imminent danger alleged must be sufficiently related to 2 a claim in the complaint for the imminent danger exception to apply. See Williams, 775 F.3d at 3 1190 (finding plaintiff’s allegations of ongoing danger – threats to her safety by other inmates – 4 “clearly related to her initial complaint” regarding rumors started by defendants) (emphasis 5 added). District courts in the Ninth Circuit accordingly have found that the plaintiff asserting the 6 imminent danger exception must show a nexus between the imminent danger alleged and a claim 7 in the complaint. See, e.g., Johnson v. Sonoma Cty. Main Adult Det. Facility, No. 14-cv-05397- 8 CW (PR), 2015 WL 1744281, at *2 (N.D. Cal. Apr. 15, 2015); Pinson v. Frisk, No. 13-cv-05502- 9 VC (PR), 2015 WL 738253, at *3 (N.D. Cal. Feb. 20, 2015). In order to qualify for the imminent 10 danger exception, plaintiff must show that: (1) the imminent danger of serious physical injury 11 alleged is fairly traceable to unlawful conduct asserted in the complaint; and (2) a favorable 12 judicial outcome would redress that injury. See id. 13 As noted above, plaintiff alleges that Nurse Mandich violated his Eighth Amendment 14 rights when she refused to treat him on November 26, 2020, and that CNE Mahoi, Correctional 15 Officer Jones, and Nurses Simon and Perry acted with deliberate indifference when they conspired 16 to cover up Nurse Mandich’s wrongdoing. See Compl. at 15-17. The Complaint was filed nearly 17 six months after the events complained of, see id. at 21, and the alleged wrongs are past, rather 18 than imminent, harms. See Andrews II, 493 F.3d at 1053 (“imminent danger” is to be assessed at 19 the time of the filing of the complaint). Plaintiff does not allege that Nurse Mandich, or any other 20 official at CTF, currently refuses to treat plaintiff’s medical needs. See generally, Compl. Any 21 future health risks plaintiff faces from Covid-19 cannot be attributed to Nurse Mandich’s actions, 22 as plaintiff had already contracted Covid-19 before his November 26, 2020 interaction with Nurse 23 Mandich. See id. at 10-11 (making clear that plaintiff already had Covid-19, and was already on 24 G-Wing with other infected inmates, before he sought treatment from Nurse Mandich). As a 25 further illustration that plaintiff seeks compensation for past harm rather than amelioration of 26 present or future danger, the only forward-seeking relief plaintiff seeks is for Nurse Mandich to be 27 placed “under investigation” for her alleged wrongdoing. Id. at 3. This request plainly aims to 1 punish Nurse Mandich rather than to protect plaintiff from any harm. Plaintiff has failed to 2 || identify any imminent danger that he faced at the time he filed the Complaint. 3 Because plaintiff has three or more strikes and does not qualify for the imminent danger 4 || exception, 28 U.S.C. § 1915(g) bars plaintiff from proceeding IFP. 5 || IV. CONCLUSION 6 In light of plaintiffs strikes, and because plaintiff is not under imminent danger of physical 7 injury, see Andrews IT, 493 F.3d at 1053, plaintiff is ORDERED TO SHOW CAUSE in writing no 8 || later than thirty (30) days from the date of this order why his motion for leave to proceed IFP 9 should not be denied and this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). If 10 || plaintiff responds to this Order but the Court concludes that plaintiff is not entitled to proceed IFP, 11 the Court will dismiss this action. 12 If plaintiff is so inclined, he may avoid dismissal by paying the filing fee. In any event, the 5 13 || Court will continue to review under section 1915(g) all future actions filed by plaintiff while he is 14 || incarcerated and in which he seeks IFP status. However, the Court notes for plaintiffs benefit that 3 || this Order does not reach the merits of plaintiffs claims. Even if plaintiff pays the filing fee, the a 16 || Court may still dismiss the Complaint on the merits. 3 17 Failure to file a timely and persuasive response or failure to pay the full filing fee will 18 || result in the dismissal of this action without further notice to plaintiff. 19 IT IS SO ORDERED. 20 21 22 DATED: December 9, 2021 Kt. ‘ bh LUCY ot 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 Case No. 21-CV-03993-LHK