McClellan v. Kern County Sheriff's Office et al

Filing 124

ORDER ADOPTING In Part and Declining to Adopt in Part 97 Findings and Recommendations and Granting 83 Motion to Revoke IFP Status signed by District Judge Lawrence J. O'Neill on 09/28/2015. (Flores, E)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12
13

GREGORY MCCLELLAN,
Plaintiff,

14
15
16
17

v.
KERN COUNTY SHERIFF’S OFFICE,
et al.,

Case No. 1:10-cv-0386-LJO-MJS (PC)
ORDER ADOPTING IN PART AND
DECLINING TO ADOPT IN PART
FINDINGS AND RECOMMENDATIONS
AND GRANTING MOTION TO REVOKE
IFP STATUS.
(ECF No. 97)

Defendant.

18
19
20
21
22
23

Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s excessive force
claim against Defendants Lozano, Wood, and Perkins, all of whom have appeared in the

24

action. (ECF Nos. 23, 71, & 73.) The matter was referred to a United States Magistrate

25

Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

26
27

On July 10, 2015, the Magistrate Judge issued findings and recommendations
(“F&Rs”) (ECF No. 97) to deny Defendants’ motion to revoke Plaintiff’s IFP status. (ECF

28
1

1

No. 83). Defendants filed objections on July 27, 2015. (ECF No. 104.) Plaintiff moved for,

2

and obtained, an extension of time to reply to these objections (ECF Nos. 114 & 116),

3

but never actually filed a reply.

4
5

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
the Court has conducted a de novo review of this case. Having carefully reviewed the

6
7
8

entire file, the Court adopts in part and declines to adopt in part the F&Rs and instead
GRANTS Defendants’ motion to revoke Plaintiff’s IFP status.
As the F&Rs correctly explain, Defendants move to revoke Plaintiff’s IFP status

9
10

on the ground that he has accrued three strikes and his pleadings do not satisfy the

11

“imminent danger” exception outlined in 28 U.S.C. § 1915(g) (“Section 1915(g)”).

12
13

Specifically, Section 1915(g) limits the availability of IFP status for certain inmates,
providing that “if the prisoner has, on 3 or more prior occasions, while incarcerated or

14
15

detained in any facility, brought an action or appeal in a court of the United States that

16

was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

17

which relief may be granted,” he will not be eligible for IFP status unless he “is under

18

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The F&Rs correctly

19

conclude that Plaintiff has three strikes. (Doc. 97 at 3 & n.1.)

20

In evaluating whether the imminent danger exception applies, the “nexus” test

21
outlined in Pettus v. Morgenthau, 554 F.3d 293, 297-98 (2d Cir. 2009), which allows
22
23

three strikers to proceed IFP only if (1) the alleged imminent danger was “fairly

24

traceable” to unlawful conduct asserted in the complaint; and (2) a favorable judicial

25

outcome would redress that danger, controls here. (See Doc. 97 at 4 (citing numerous

26

cases from this District).)1 However, the Court does not agree with the F&Rs conclusion

27
28

1

The F&Rs assumed, arguendo, that Pettus provides the controlling standard. Here, the Court

2

1

that the Pettus standard is satisfied here. The F&Rs reasoned that the danger Plaintiff

2

claims to face from jail conditions was a result of being incarcerated illegally. Id. at 5

3

(citing Doc. 1, at 22 (“[t]he false arrest and illegal custody are directly linked with being

4

exposed to the risk of contracting HIV, H1N1, hepatitis C, lice, etc.”).) The F&Rs further

5

found:

6
7
8
9
10
11
12
13

The conditions giving rise to the imminent danger (exposure
to diseased inmates and overcrowded, unsanitary conditions)
were thus “fairly traceable” to his alleged imprisonment
without probable cause. Moreover, a judicial determination
that Plaintiff was in fact illegally detained would “redress” the
danger, because it would result in Plaintiff’s release from
custody.
(Doc. 97 at 5.)
Pettus specifically disclaims that such a scenario creates a sufficient nexus. While
the Second Circuit found that some of Pettus’ claims did satisfy the nexus test (e.g. his

14
claims against a high-level correctional official for failing to properly oversee jail
15
16

administration), it also held that “[t]he bulk of Pettus's claims for relief are directed at

17

asserted wrongs—such as his allegedly improper prosecution and inmate

18

classification—that are much too attenuated from the imminent danger of serious

19

physical injury he alleges to conclude that this danger may fairly be traced back to the

20

asserted wrongs.” 554 F.3d at 299 (emphasis added). Likewise, Plaintiff’s improper

21

detention is too attenuated from any form of imminent danger Plaintiff claims to be facing

22
23
24
25
26
27
28

while incarcerated. On the current record, the Court finds no nexus between Plaintiff’s
alleged false arrest/unlawful custody and any imminent danger claimed by Plaintiff. To
affirmatively finds that Pettus controls, following other district courts that have so found. See Chappell v.
Fleming, No. 2:12-CV-0234, 2013 WL 2156575, at *5 (E.D. Cal. May 17, 2013), findings and
recommendations adopted by No. 2:12-CV-0234, 2013 WL 3872794 (E.D. Cal. July 25, 2013); Williams v.
Brennan, No. 2:12-CV-2155, 2013 WL 394871, at *1-2 (E.D. Cal. Jan. 30, 2013), findings and
recommendations adopted by No. 2:12-CV-2155, 2013 WL 1192770 (E.D. Cal. Mar. 22, 2013); Johnson v.
Sonoma Cnty. Main Adult Det. Facility, No. 14-CV-05397, 2015 WL 1744281, at *2 (N.D. Cal. Apr. 15,
2015).

3

1

find otherwise would render the nexus standard meaningless in practice, as it would be

2

satisfied in every false arrest/unlawful custody case.

3
4

Accordingly, it is HEREBY ORDERED that:
1. The Court adopts in part and declines to adopt in part the F&Rs (ECF No. 97),

5

filed July 10, 2015;

6
7

2. Defendants’ motion to revoke Plaintiff’s IFP status (ECF No. 83), filed May 18,
2015, is GRANTED;

8
9

3. Plaintiff is directed to pay the filing fee of $400.00 within twenty-one (21) days

10

of service of this order; Plaintiff is warned that failure to pay the filing fee will

11

result in dismissal without prejudice for failure to prosecute.

12

IT IS SO ORDERED.

13
14

Dated:

/s/ Lawrence J. O’Neill

September 28, 2015

UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4