Moon v. Holland et al
Filing
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ORDER Adopting 7 FINDINGS AND RECOMMENDATIONSto DENY Plaintiff's 2 Request to Proceed In Forma Pauperis signed by District Judge Lawrence J. O'Neill on 12/3/2014. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ADRIAN MOON,
Case No. 1:14-cv-01704-LJO-JLT (PC)
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Plaintiff,
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v.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY PLAINTIFF'S
REQUEST TO PROCEED IN FORMA PAUPERIS
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HOLLAND, et al.,
(Docs. 2, 7, 8, 9)
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Defendants.
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Plaintiff, Adrian Moon, is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. ' 1983. The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.
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On November 5, 2014, the Magistrate Judge issued a Finding and Recommendation ("the
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F&R") to deny Plaintiff's motion to proceed in forma pauperis in this action, finding that he was
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barred under 28 U.S.C. §1915(g) since Plaintiff had at least five strikes prior to the filing of this
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action and that Plaintiff failed to show that he was in imminent danger of serious physical injury
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at the time he filed suit. (Doc. 7.) This was served on Plaintiff and contained notice that
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objections to the F&R were due within thirty days. (Id.) Plaintiff did not file any objections. He
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did, however, file a motion to amend and a first amended complaint which are construed as his
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objections to the F&R. (Docs. 8, 9.)
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As was accurately stated in the F&R, prisoners may not bring a civil action under 28
U.S.C. §1915(g) if he or she has, on three or more prior occasions, while incarcerated or detained,
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brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a
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claim upon which relief may be granted, unless the prisoner is under imminent danger of serious
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physical injury. Such dismissals are colloquially referred to as "strikes." As also accurately
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noted in the F&R, Plaintiff had at least five strikes1 under section 1915(g) prior to filing this
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action. Thus, Plaintiff may only proceed under section 1915(g) if he meets the imminent danger
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of serious physical injury exception.
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The Ninth Circuit has stated that "requiring a prisoner to 'allege [ ] an ongoing danger' . . .
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is the most sensible way to interpret the imminency requirement." Andrews v. Cervantes, 493
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F.3d 1047, 1056 (9th Cir.2007), citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.2003).
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Andrews held that the imminent danger faced by the prisoner need not be limited to the time
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frame of the filing of the complaint, but may be satisfied by alleging a danger that is ongoing.
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See Andrews at 1053.
As found in the F&R, Plaintiff's Complaint does not satisfy the imminent danger
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exception -- restrictive housing (even extremely so), false RVRs, limited privileges, property
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thefts, tampering with mail, being required to wear flip-flops to walk down the stairs to the
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showers, "bobby-traps" that have not amounted to any injury, and verbal threats pose no
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imminent danger. See Andrews, at 1056-57 (a prisoner must show that prison officials continue
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with a practice that has injured him or others similarly situated in the past to satisfy the “ongoing
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danger” standard and meet the imminence prong of the three-strikes exception). Plaintiff cites no
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authority to support his argument that housing in "maximum isolation" amounts to imminent
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danger of serious physical injury and the Court finds none.
Plaintiff's new statements that attempt to add three pending, related cases and define the
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terms "maximum isolation facility" and "RVR" (see Doc. 9, pp. 1-2; Doc. 8, pp. 1-2) do not show
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an imminent danger of serious physical injury.
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See Case Nos. 12-5754-UA (MLG), CV 12-7697-UA (MLG), CV 12-1514-UA (MLG), EDCV 12-632-UA (MLG),
and CV 12-4972 (MLG) among others. The Court also notes that Moon v. Junious, et al., 1:12-cv-00096 GSA was
dismissed on March 27, 2013, for Plaintiff's failure to state a claim. Plaintiff appealed the action, but the notice of
appeal was timely as to only two post-judgment motions. The appeal was found to be on issues so insubstantial as
not to require further argument and the district court's post-judgment orders were summarily affirmed.
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A few of Plaintiff's new statements require greater analysis, though likewise fail to show
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an imminent danger of serious physical injury. To wit, Plaintiff now states that several judges
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(including the undersigned and the Magistrate Judge assigned to this action) "criminally
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conspired . . . in the illicit closing" of Plaintiff's action in the United States District Court in the
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Northern District of California so as to continue his confinement in maximum isolation because
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he filed "complaints against them causing them to be forcible [sic] 'retired' as judges." (Doc. 8, at
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22:22-24:15.) These statements are simply not facially plausible under Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009). Further, "[i]t has long been established that judges are absolutely immune
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from liability for acts 'done by them in the exercise of their judicial functions.'" Miller v. Davis,
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521 F.3d 1142, 1145 (9th Cir. 2008) quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20
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L.Ed. 646 (1871). Judicial immunity is not lost by Plaintiff's allegations that these judges
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"criminally conspired" -- even if with a third party. As long as the judge=s ultimate acts are
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judicial actions taken within the court=s subject matter jurisdiction, immunity applies. Ashelman
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v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). All of the judges Plaintiff attempts to name in this
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action are absolutely immune from liability in this action since Plaintiff's statements against them
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are solely based on prior adverse rulings. (See Doc. 8, at 22:22-24:15.)
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If Plaintiff hoped that attempting to add the named judges as defendants in this action
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would result in recusal, he is remiss. Recusal is appropriate under 28 U.S.C. § 455(a) when a
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judge's “impartiality may be reasonably questioned,” and under § 455(b)(1) of that same code
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when the judge has “a personal bias or prejudice concerning a party, or personal knowledge of
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disputed evidentiary facts concerning the proceeding.” The standard for recusal is ". . . whether a
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reasonable person with knowledge of all the facts would conclude that the judge's impartiality
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might reasonably be questioned . . . . The 'reasonable person' is not someone who is
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hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful observer. The
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standard must not be so broadly construed that it becomes, in effect, presumptive, so that recusal
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is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice." Miles v.
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Ryan, 697 F.3d 1090 (9th Cir. 2012) quoting United States v. Holland, 519 F.3d 909, 913 (9th
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Cir.2008). "To provide grounds for recusal, prejudice must result from an extrajudicial source. A
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judge's previous adverse ruling alone is not sufficient bias." Duckworth v. Department of Navy,
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974 F.2d 1140, 1142 (9th Cir. 1992) quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.
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1984). Plaintiff's statements against the judges he attempted to name in this action do not provide
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basis for recusal since they are solely based on previous adverse rulings. (See Doc. 8, at 22:22-
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24:15.)
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Finally, as also discussed in the F&R, Plaintiff's retention in more constrained housing (be
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it "maximum isolation" or otherwise) does not amount to plaintiff being placed in imminent
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danger of serious physical injury such that his additional and/or corrected statements that a
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number of prison staff filed a false RVR against him in retaliation to cause his continued retention
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in maximum isolation (see id., at 24:16-25:18) does not provide a basis upon which to grant
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Plaintiff leave to proceed in forma pauperis.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the F&R to
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be supported by the record and by proper analysis. Plaintiff does not satisfy the imminent danger
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exception to section 1915(g). See Andrews, 493 F.3d at 1055-56. Therefore, Plaintiff must pay
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the $400.00 filing fee if he wishes to litigate the claims he raises in this action.
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Accordingly, IT IS HEREBY ORDERED that:
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full;
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Within thirty days from the date of service of this order, Plaintiff is required to pay
the $400.00 filing fee for this action in full; and
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The Finding and Recommendation, filed November 5, 2014 (Doc. 7), is adopted in
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Plaintiff’s failure to comply with this order shall result in the dismissal of this
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action.
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IT IS SO ORDERED.
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Dated:
/s/ Lawrence J. O’Neill
December 3, 2014
UNITED STATES DISTRICT JUDGE
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