(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VINCENT RAY, JR., 12 Plaintiff, 13 14 vs. 15 S. CHEFALO, Defendant. 16 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 17 18 19 20 I. 21 22 23 24 25 26 27 28 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 1 1 in a court of the United States that was dismissed on the grounds that it is frivolous, malicio us, 2 or fails to state a claim upon which relief may be granted, unless the prisoner is under immine nt 3 danger of serious physical injury.” 4 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 5 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”). “Pursuant to § 1915(g), a 6 prisoner with three strikes or more cannot proceed IFP [or in forma pauperis].” Id.; see also 7 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 8 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from 9 IFP status under the three strikes rule[.]”). The objective of the PLRA is to further “the 10 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 11 128 F.3d 1310, 1312 (9th Cir. 1997). 12 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 13 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews, 14 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissa l 15 as a denial of the prisoner’s application to file the action without prepayment of the full filing 16 fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumula ted 17 three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal 18 court unless he can show he is facing “imminent danger of serious physical injury.” 19 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP 20 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of 21 serious physical injury’ at the time of filing”). See 28 22 While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his 23 request to proceed in forma pauperis, Andrews, 398 F.3d at 1119, “[i]n some instances, the 24 district court docket records may be sufficient to show that a prior dismissal satisfies at least one 25 of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28 26 U.S.C. § 1915(g), however, the court must “conduct a careful evaluation of the order dismiss ing 27 an action, and other relevant information,” before determining that the action “was dismissed 28 2 1 because it was frivolous, malicious or failed to state a claim,” since “not all unsuccessful cases 2 qualify as a strike under § 1915(g).” Id. at 1121. 3 The Ninth Circuit has held that “the phrase ‘fails to state a claim on which relief may be 4 granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure 5 12(b)(6).’” Id. (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews 6 further holds that a case is “frivolous” for purposes of § 1915(g) “if it is of little weight or 7 importance” or “ha[s] no basis in law or fact.” 398 F.3d at 1121 (citations omitted); see also 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual 9 allegations and legal conclusions, is frivolo us [under 28 U.S.C. § 1915] where it lacks an arguable 10 basis in either law or in fact . . . . [The] term ‘frivolous,’ when applied to a complaint, embraces 11 not only the inarguable legal conclusion, but also the fanciful factual allegation.”). 12 III. ANALYSIS 13 A. Three Strikes 14 A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 15 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the 16 Complaint was filed, under imminent danger of serious physical injury. 17 that on three prior occasions, Plaintiff has brought actions while incarcerated that were dismissed 18 as frivolous, malicious, or for failure to state a claim upon which relief may be granted. The 19 strikes described in these cases all occurred prior to the filing of the present action on August 4, 20 2020. Court records reflect 21 (1) Ray v. Schoo, et al., Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) 22 (dismissed on January 2, 2014, for failure to state a claim). 23 24 25 (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 26 27 (3) Ray v. Friedlander, Case No. 3:10-cv-01107-SI (N.D. Cal) (dismissed on 28 September 1, 2010, as frivolous and for failure to state a claim). 3 1 B. 2 The Court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does 3 Imminent Danger not meet the imminent danger exception. See Cervantes, 493 F.3d at 1053. 4 In the Complaint, Plaintiff alleges that he is imminent danger of serious physical injur y 5 because the defendant in this case, Sergeant Chefalo, stated, “You now have a target on your 6 back” because Plaintiff filed a 602 grievance complaining about an officer’s use of underground 7 regulations over a hat. Complaint at 3, 4. Plaintiff states that he took that comment to mean that 8 defendant Chefalo was going to have him assaulted or assault Plaintiff himself, and that 9 defendant’s statement in prison is a death threat. Id. at 3. Plaintiff claims that since defendant’s 10 action one inmate who is in prison for murder told him, “You better pick your battles carefully, ” 11 and while on the exercise yard Plaintiff overheard other inmates blame him for a “lack of 12 program” due to filing grievances. Id. at 5. Plaintiff also claims that he has no “strikes,” as his 13 prior filings were more like habeas petitions than civil rights complaints. Id. at 3. 14 The availability of the imminent danger exception turns on the conditions a prisoner faced 15 at the time the complaint was filed, not at some earlier or later time. Bradford v. Kraus, No. 2:19- 16 CV-1753 DB P, 2020 WL 738554, at *2 (E.D. Cal. Jan. 23, 2020), report and recommendatio n 17 adopted, No. 219CV1753KJMDBP, 2020 WL 731114 (E.D. Cal. Feb. 13, 2020) (citing see 18 Cervantes, 493 F.3d at 1053.). Plaintiff has not described any specific threats indicating that he 19 was about to be assaulted by anyone at the time he filed the Complaint. Plaintiff alleges that 20 defendant Chafelo threatened him on August 18, 2020, which is more than two months before he 21 filed the Complaint. Imminent danger of serious physical injury must be a real, present threat, 22 not merely speculative or hypothetical. Speculation that Plaintiff may be assaulted at a later time 23 is insufficient. The “imminent danger” exception is available “for genuine emergencies,” where 24 “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 25 (7th Cir. 2002). “Vague and utterly conclusory assertions” of harm are insufficient. White v. 26 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). 27 Plaintiff has not provided “specific fact allegations of ongoing serious physical injury, or 28 a pattern of misconduct evidencing the likelihood of imminent serious physical injur y. ” 4 1 Bradford, 2020 WL 738554, at *2 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2 2003). Plaintiff’s allegations fail to meet the imminent danger exception. Bradford, 2020 WL 3 738554, at *3 (citing see Hendon v. Kulka, No. 2:14-cv-2581 AC P, 2015 WL 4637962 at *2 4 (E.D. Cal. Aug. 3, 2015) (finding plaintiff’s allegations that he was denied due process and 5 suffered side effects stemming from involuntary medication failed to meet imminent danger 6 exception). 7 Because Plaintiff fails to demonstrate that he meets the imminent danger exception to the 8 three-strikes bar, this court will recommend that Plaintiff’s motion to proceed in forma pauperis 9 be denied and this case be dismissed without prejudice to refiling upon prepayment of the filing 10 fee. 11 IV. CONCLUSION AND RECOMMENDATIONS 12 Based on the foregoing, it is HEREBY RECOMMENDED that: 13 1. be denied under 28 U.S.C. § 1915(g); and 14 15 Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s motion to proceed in forma pauperis 2. This action be dismissed without prejudice to refiling upon prepayment of the filing fee. 16 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 19 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 20 may file written objections with the Court. The document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” 22 objections within the specified time may waive the right to appeal the District Court’s order. 23 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Plaintiff is advised that failure to file 24 25 26 27 IT IS SO ORDERED. Dated: November 20, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28 5

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