East v. Wadman et al

Filing 9

ORDER to SHOW CAUSE Regarding Three Strikes signed by Magistrate Judge Michael J. Seng on 4/3/2012. Show Cause Response due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST,

CASE NO. 1:11-cv-913-AWI-MJS (PC)

Plaintiff,

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ORDER TO SHOW CAUSE REGARDING
THREE STRIKES

v.

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(ECF No. 4)
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BRENT WADMAN, et al.,
FOURTEEN DAY DEADLINE
Defendants.

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/

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Plaintiff Ebone LeRoy East (“Plaintiff”) is a former state prisoner proceeding pro se
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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was previously at Kern
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Valley State Prison. He has since been released from prison.
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Plaintiff initiated this action on June 7, 2011. (ECF No. 1.) This action has yet to be
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screened pursuant to 28 U.S.C. § 1915A. It is proceeding on Plaintiff’s Complaint against
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Defendants Wadman and Yubeta for alleged violations of Plaintiff’s rights under the First,
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Eighth, and Fourteenth Amendments. Plaintiff seeks monetary relief.
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I.

THREE STRIKES

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A review of the record of actions filed by Plaintiff in the United States District Court
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reveals that Plaintiff filed three or more actions that were dismissed as frivolous, malicious
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or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28 of
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the United States Code governs proceedings in forma pauperis. Section 1915(g) provides
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that:
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[i]n no event shall a prisoner bring a civil action . . . under this section if the
prisoner has, 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 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 prisoner is under imminent
danger of serious physical injury.

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28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions count as strikes under section

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1915(g) requires the Court to conduct a “careful examination of the order dismissing an

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action, and other relevant information,” to determine if, in fact, “the action was dismissed

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because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d

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1113, 1121 (9th Cir. 2005).

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After careful review of the dismissal orders, the Court takes judicial notice that

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Plaintiff has one prior action dismissed for failing to state a claim for which relief can be

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granted under section 1983. That case is East v. County of San Bernardino, et al., 5:10-cv-

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1381-UA-E (PC) (C.D. Cal.) (dismissed September 21, 2010, for failure to state a claim and

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because defendants were entitled to immunity).

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Furthermore, the Court takes judicial notice that the Plaintiff has four prior actions

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dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) for not stating a cognizable claim

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under section 1983. Those cases are: 1) East v. Gidcumb, et al., 5:09-cv-1105-UA-E (PC)

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(C.D. Cal.) (dismissed June 17, 2009, for failure to state a claim under Heck); 2) East v.

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Pace, et al., 5:09-cv-1810-UA-E(PC) (C.D. Cal.) (dismissed October 1, 2009, for failure to

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state a claim under Heck and because many of the defendants were immune); 3) East v.

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San Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.) (dismissed December 11,

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2009, for failure to state a claim under Heck); 4) East v. Hoops, 5:10-cv-0949-UA-E (PC)

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(C.D. Cal.) (dismissed July 8, 2010, for failure to state a claim under Heck). A dismissal

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pursuant to Heck counts as a strike under 28 U.S.C. § 1915(g). The Supreme Court in

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“This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or
appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were]
frivolous, malicious, or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g),
a prisoner with three strikes or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d
1113, 1116 n.1(9th Cir. 2005).

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Heck stated its ruling was based on a denial of “the existence of a cause of action.” Heck,

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512 U.S. at 489. Additionally, several other courts have held that dismissals under Heck

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count as strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99, 102

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(5th Cir. 1996) (“A § 1983 claim which falls under the rule in Heck is legally frivolous.”);

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Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck, the complaint was

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properly dismissed for failure to state a claim.”).

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It appears to the Court that Plaintiff had three or more strikes and became subject

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to section 1915(g) well before Plaintiff filed this action on June 6, 2011. Therefore, the

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Court finds that Plaintiff should be precluded from proceeding in forma pauperis unless he

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is, at the time the Complaint was filed, under imminent danger of serious physical injury.

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II.

IMMINENT DANGER

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The Court has reviewed Plaintiff's Complaint and, based on the allegations therein,

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finds that Plaintiff does not meet the imminent danger exception. Andrews v. Cervantes,

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493 F.3d 1047, 1053 (9th Cir. 2007). “[T]he [imminent danger] exception applies if the

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complaint makes a plausible allegation that the prisoner faced an “imminent danger of

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serious physical injury at the time of filing.” Andrews, 493 F.3d at 1055. The Ninth Circuit

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has found that “requiring a prisoner to ‘allege [ ] an ongoing danger’ ... is the most sensible

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way to interpret the imminency requirement.” Id. (quoting Ashley v. Dilworth, 147 F.3d 715,

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717 (8th Cir. 1998). To meet his burden under Section 1915(g), the inmate must provide

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“specific fact allegations of ongoing serious physical injury, or a pattern of misconduct

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evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d

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1048, 1050 (8th Cir. 2003). “Vague or conclusory allegations of harm are insufficient.”

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White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998).

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Plaintiff alleges that as a result of exercising his right to free speech and freedom of

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expression under the First Amendment on May 6, 2012, he was assaulted by Defendants

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the next day. (Compl. at 9.) Defendants silenced and chilled Plaintiff by assaulting him.

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(Id.)2 (Id.) After the incident, Plaintiff was moved to the Behavioral Management Unit, an

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action that violated Plaintiff’s due process rights under the Fourteenth Amendment. (Id. at

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12, 18.) Plaintiff believes that this move was in violation of 15 CCR § 3334(g)3 and the Due

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Process Clause of the Fourteenth Amendment. (Compl. at 12, 17.)

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At no point does Plaintiff allege facts that suggest he currently is facing imminent

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danger. Inasmuch as he was released from prison after filing his Complaint. (ECF No. 8.)

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It is unlikely that he is facing any ongoing threat from prison officials. Plaintiff does not

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meet the imminent danger exemption.

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III.

CONCLUSION AND ORDER

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Because it appears that the Plaintiff has on three or more prior occasions brought

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civil actions that have been dismissed as frivolous or for failure to state a claim, the Court

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HEREBY ORDERS that Plaintiff SHALL SHOW CAUSE within fourteen (14) days of the

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date of service of this order why the abovementioned actions do not count as “strikes” under

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28 U.S.C. § 1915(g) and why the action should not be dismissed without prejudice to allow

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Plaintiff to refile with the submission of the $350.00 filing fee.

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-IT IS SO ORDERED.

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Dated:
ci4d6

April 3, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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In his Complaint, Plaintiff repeats the elements necessary for a retaliation claim under the First
Amendment and for an excessive force claim under the Eighth Amendment. (Compl. at 9-10.)
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Plaintiff purports to cite to specific language in this section, but the quoted language does not
appear anywhere in this regulation.

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