(PC) Ray v. Chefalo

Filing 10

FINDINGS and RECOMMENDATIONS to deny Plaintiff's Motion to Proceed In Forma Pauperis and dismiss action without prejudice #2 signed by Magistrate Judge Gary S. Austin on 11/20/2020. Referred to Judge Anthony W. Ishii. Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD VINCENT RAY, JR.,

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Plaintiff,

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vs.

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S. CHEFALO,
Defendant.

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1:20-cv-01515-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND
DISMISS ACTION WITHOUT
PREJUDICE
(ECF No. 2.)
OBJECTIONS, IF ANY, DUE IN 14 DAYS

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I.

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BACKGROUND
Edward Vincent Ray, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil

rights action pursuant to 42 U.S.C. § 1983. On October 27, 2020, Plaintiff filed the Complaint
commencing this action, together with a motion to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 1, 2.)
II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that

“[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
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in a court of the United States that was dismissed on the grounds that it is frivolous, malicio us,

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or fails to state a claim upon which relief may be granted, unless the prisoner is under immine nt

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danger of serious physical injury.”

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“This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King,

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398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”).

“Pursuant to § 1915(g), a

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prisoner with three strikes or more cannot proceed IFP [or in forma pauperis].” Id.; see also

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Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the

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PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from

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IFP status under the three strikes rule[.]”).

The objective of the PLRA is to further “the

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congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers,

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128 F.3d 1310, 1312 (9th Cir. 1997).

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were

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dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews,

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398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissa l

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as a denial of the prisoner’s application to file the action without prepayment of the full filing

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fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumula ted

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three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal

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court unless he can show he is facing “imminent danger of serious physical injury.”

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U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of

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serious physical injury’ at the time of filing”).

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While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his

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request to proceed in forma pauperis, Andrews, 398 F.3d at 1119, “[i]n some instances, the

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district court docket records may be sufficient to show that a prior dismissal satisfies at least one

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of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28

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U.S.C. § 1915(g), however, the court must “conduct a careful evaluation of the order dismiss ing

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an action, and other relevant information,” before determining that the action “was dismissed

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because it was frivolous, malicious or failed to state a claim,” since “not all unsuccessful cases

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qualify as a strike under § 1915(g).” Id. at 1121.

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The Ninth Circuit has held that “the phrase ‘fails to state a claim on which relief may be

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granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure

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12(b)(6).’” Id. (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews

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further holds that a case is “frivolous” for purposes of § 1915(g) “if it is of little weight or

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importance” or “ha[s] no basis in law or fact.” 398 F.3d at 1121 (citations omitted); see also

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Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual

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allegations and legal conclusions, is frivolo us [under 28 U.S.C. § 1915] where it lacks an arguable

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basis in either law or in fact . . . . [The] term ‘frivolous,’ when applied to a complaint, embraces

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not only the inarguable legal conclusion, but also the fanciful factual allegation.”).

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III.

ANALYSIS

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A.

Three Strikes

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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. §

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1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the

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Complaint was filed, under imminent danger of serious physical injury.

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that on three prior occasions, Plaintiff has brought actions while incarcerated that were dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted. The

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strikes described in these cases all occurred prior to the filing of the present action on August 4,

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2020.

Court records reflect

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(1) Ray v. Schoo, et al., Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.)

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(dismissed on January 2, 2014, for failure to state a claim).

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(2) Ray v. Bruiniers, Case No. 3:10-cv-00824-SI (N.D. Cal.) (dismissed on
September 1, 2010, as frivolous and for failure to state a claim); and

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(3) Ray v. Friedlander, Case No. 3:10-cv-01107-SI (N.D. Cal) (dismissed on

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September 1, 2010, as frivolous and for failure to state a claim).
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B.

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The Court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does

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Imminent Danger

not meet the imminent danger exception. See Cervantes, 493 F.3d at 1053.

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In the Complaint, Plaintiff alleges that he is imminent danger of serious physical injur y

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because the defendant in this case, Sergeant Chefalo, stated, “You now have a target on your

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back” because Plaintiff filed a 602 grievance complaining about an officer’s use of underground

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regulations over a hat. Complaint at 3, 4. Plaintiff states that he took that comment to mean that

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defendant Chefalo was going to have him assaulted or assault Plaintiff himself, and that

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defendant’s statement in prison is a death threat. Id. at 3. Plaintiff claims that since defendant’s

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action one inmate who is in prison for murder told him, “You better pick your battles carefully, ”

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and while on the exercise yard Plaintiff overheard other inmates blame him for a “lack of

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program” due to filing grievances. Id. at 5. Plaintiff also claims that he has no “strikes,” as his

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prior filings were more like habeas petitions than civil rights complaints. Id. at 3.

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The availability of the imminent danger exception turns on the conditions a prisoner faced

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at the time the complaint was filed, not at some earlier or later time. Bradford v. Kraus, No. 2:19-

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CV-1753 DB P, 2020 WL 738554, at *2 (E.D. Cal. Jan. 23, 2020), report and recommendatio n

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adopted, No. 219CV1753KJMDBP, 2020 WL 731114 (E.D. Cal. Feb. 13, 2020) (citing see

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Cervantes, 493 F.3d at 1053.). Plaintiff has not described any specific threats indicating that he

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was about to be assaulted by anyone at the time he filed the Complaint. Plaintiff alleges that

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defendant Chafelo threatened him on August 18, 2020, which is more than two months before he

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filed the Complaint. Imminent danger of serious physical injury must be a real, present threat,

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not merely speculative or hypothetical. Speculation that Plaintiff may be assaulted at a later time

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is insufficient. The “imminent danger” exception is available “for genuine emergencies,” where

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“time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531

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(7th Cir. 2002). “Vague and utterly conclusory assertions” of harm are insufficient. White v.

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

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Plaintiff has not provided “specific fact allegations of ongoing serious physical injury, or

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a pattern of misconduct evidencing the likelihood of imminent serious physical injur y. ”
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Bradford, 2020 WL 738554, at *2 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.

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2003). Plaintiff’s allegations fail to meet the imminent danger exception. Bradford, 2020 WL

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738554, at *3 (citing see Hendon v. Kulka, No. 2:14-cv-2581 AC P, 2015 WL 4637962 at *2

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(E.D. Cal. Aug. 3, 2015) (finding plaintiff’s allegations that he was denied due process and

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suffered side effects stemming from involuntary medication failed to meet imminent danger

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exception).

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Because Plaintiff fails to demonstrate that he meets the imminent danger exception to the

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three-strikes bar, this court will recommend that Plaintiff’s motion to proceed in forma pauperis

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be denied and this case be dismissed without prejudice to refiling upon prepayment of the filing

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fee.

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IV.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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be denied under 28 U.S.C. § 1915(g); and

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Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s motion to proceed in forma pauperis

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This action be dismissed without prejudice to refiling upon prepayment of the
filing fee.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.”

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Plaintiff is advised that failure to file

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IT IS SO ORDERED.
Dated:

November 20, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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