(PC)Simmons v. Wuerth et al
Filing
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ORDER Vacating September 5, 2019 12 Order Granting Application to Proceed in Forma Pauperis; FINDINGS and RECOMMENDATIONS Recommending Denying Plaintiff's Motion to Proceed In Forma Pauperis, signed by Magistrate Judge Stanley A. Boone on 9/6/19. Referred to Judge Drozd. Objections to F&R Due Within Thirty Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MELVIN JOSEPH SIMMONS,
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Plaintiff,
v.
Case No. 1:19-cv-01107-DAD-SAB (PC)
ORDER VACATING SEPTEMBER 5, 2019
ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS
J. WUERTH, et al.,
(ECF No. 12)
Defendants.
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS
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(ECF No. 11)
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OBJECTIONS DUE WITHIN THIRTY DAYS
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Plaintiff Melvin Joseph Simmons is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. On July 18, 2019, Plaintiff initiated this action in the
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Sacramento Division of the United States District Court for the Eastern District of California. (ECF
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No. 1.) On August 14, 2019, this action was transferred to this Court. (ECF No. 5.) On August
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15, 2019, the Court ordered Plaintiff to submit an application to proceed in forma pauperis, or pay
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the $400.00 filing fee, within forty-five days. (ECF No. 8.)
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On September 3, 2019, Plaintiff filed an incomplete application to proceed in forma
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pauperis. (ECF No. 11.) Specifically, Plaintiff’s application is incomplete because Plaintiff only
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submitted the second page of the two-page in forma pauperis application. However, rather than
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properly denying, without prejudice, Plaintiff’s incomplete application to proceed in forma
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pauperis, the Court inadvertently issued an order granting Plaintiff’s application to proceed in
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forma pauperis. (ECF No. 12.) Upon review of the application, the Court finds that Plaintiff’s
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application demonstrates the ability to pay the filing fee and therefore he is not entitled to proceed
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without prepayment of fees. Additionally, the Court has discovered that Plaintiff has incurred three
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or more strikes under section 1915(g) of Title 28 of the United States Code prior to filing this
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lawsuit. Therefore, the order granting Plaintiff in forma pauperis status in this action is vacated
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and the Court recommends that Plaintiff’s application to proceed in forma pauperis be denied.
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I.
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DISCUSSION
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A.
Application to Proceed In Forma Pauperis
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In order to proceed in court without prepayment of the filing fee, Plaintiff must submit an
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affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. §
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1915(a)(1). Additionally a prisoner is required to submit a certified copy of their trust fund
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statement for the six month period preceding the filing of the complaint. 28 U.S.C. . § 1915(a)(2).
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The right to proceed without prepayment of fees in a civil case is a privilege and not a right.
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Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 198 n.2
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(1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to proceed in forma
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pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not
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violate the applicant’s right to due process”). A plaintiff need not be absolutely destitute to proceed
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in forma pauperis and the application is sufficient if it states that due to his poverty he is unable to
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pay the costs and still be able to provide himself and his dependents with the necessities of life.
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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Whether to grant or deny an
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application to proceed without prepayment of fees is an exercise of the district court’s discretion.
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Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015).
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Here, Plaintiff has not submitted the first page of the application, however, any information
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that would be included on that page would not change the Court’s analysis. On the second page
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which was submitted and signed by Plaintiff he indicates that he has $1,706.20 in cash. (ECF No.
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11.) Based on the information that Plaintiff has provided, the Court finds that it demonstrates that
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he is financially able to pre-pay the entire filing fee to commence this action. Although the Ninth
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Circuit Court of Appeals has held that “the filing fee … should not take the prisoner’s last dollar,”
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Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995), in these circumstances, Plaintiff has
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sufficient funds to pre-pay the $400 filing fee with money left over. Accordingly, Plaintiff is not
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entitled to proceed in this action without prepayment of fees.
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B.
28 U.S.C. 1915(g)
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Additionally, the Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb
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frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th
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Cir. 2011) overruled on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015). Pursuant
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to the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits
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related screening device which precludes prisoners with three or more “strikes” from proceeding
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in forma pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. §
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1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides 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
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more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in
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a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails
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to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of
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serious physical injury.” 28 U.S.C. § 1915(g).
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The Court finds that Plaintiff has incurred three or more strikes under section 1915(g) prior
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to filing this lawsuit. The Court takes judicial notice of the following cases: (1) Simmons v.
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Lamarque, no. 5:03-cv-04509-JW (N.D. Cal.) (dismissed July 27, 2007 for failure to state a claim);
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Simmons v. Guirbino, no. 3:11-cv-02169-WHA (N.D. Cal.) (dismissed July 1, 2011 for failure to
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state a claim); Simmons v. Williams, no. 2:09-cv-03505-EFB (E.D. Cal.) (dismissed April 11, 2012
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for failure to state a claim); Simmons v. Hatter, no. 2:12-cv-03098-UA-DUTY (W.D. L.A.)
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(dismissed April 23, 2012 based on immunity and for seeking habeas relief in the action.1);
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It is clear from the face of Plaintiff’s complaint that he was bringing suit against individuals that were entitled to
absolute immunity. Harris v. Harris, __ F.3d. ___, 2019 WL 3938883, at *4 (9th Cir. Aug. 21, 2019). Further, upon
review of the complaint, it is little more than a veiled attempt to avoid the substantive hurdles of bringing a habeas
petition. El-Shaddai v. Zamora, 833 F.3d 1036, 1047 (9th Cir. 2016). See also Simmons v. Edmund J. Brown, no.
2:17-cv-5860-TJH(E) (C.D. Cal.) (dismissed August 18, 2017 and discussing denial of Plaintiff’s habeas petitions
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Simmons v. Kernan, no. 5:16-cv-07319-LHK (N.D. Cal.) (dismissed July 25, 2017 for failure to
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state a claim); Simmons v. Brown, no. 5:18-cv-06890-LHK (N.D. Cal.) (dismissed April 24, 2019
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for failure to state a claim.).
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The issue now becomes whether Plaintiff has met the imminent danger exception, which
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requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and
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which turns on the conditions he faced at the time he filed his complaint on July 26, 2019. Andrews,
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493 F.3d at 1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time
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are immaterial, as are any subsequent conditions. Id. at 1053. While the injury is merely procedural
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rather than a merits-based review of the claims, the allegations of imminent danger must still be
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plausible. Id. at 1055.
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The Court further finds that Plaintiff’s complaint allegations do not meet the imminent
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danger exception. Andrews, 493 F.3d at 1053. Plaintiff has not shown that he is at risk of any
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serious physical injury. Rather, in seeking monetary damages, Plaintiff contends that on August 8,
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2018, while housed Corcoran State Prison he was subjected to excessive force when he was
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excessively sprayed with pepper spray during a cell extraction. At the time that Plaintiff filed his
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complaint and currently, he is housed at High Desert State Prison, and there are no allegations that
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he is in imminent danger of physical harm based on allegations of excessive force that took place
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over a year ago at a different prison. Accordingly, Plaintiff is ineligible to proceed in forma
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pauperis in this action, and he should be required to pre-pay the $400 filing fee to proceed in this
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case.
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II.
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CONCLUSION AND RECOMMENDATIONS
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Accordingly, IT IS HEREBY ORDERED that the September 5, 2019 order granting
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Plaintiff leave to proceed in forma pauperis in this action is VACATED.
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Further, for the reasons explained above, it is HEREBY RECOMMENDED that:
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Plaintiff’s motions to proceed in forma pauperis (ECF No. 11) be denied; and
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and his attempts to challenge his conviction in 1983 actions).
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Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service
of the Court’s order adopting these findings and recommendations.
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These findings and recommendations will be submitted to the United States district judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 6, 2019
UNITED STATES MAGISTRATE JUDGE
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