(PC) Anderson v. Doe

Filing 5

FINDINGS and RECOMMENDATIONS Recommending Plaintiff not be Allowed to Proceed In Forma Pauperis in this Action signed by Magistrate Judge Stanley A. Boone on 11/18/2020. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HECTOR CLARENCE ANDERSON, 12 Plaintiff, 13 14 v. JOHN DOE, 15 Defendant. 16 Case No.: 1:20-cv-01620-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF NOT BE ALLOWED TO PROCEED IN FORMA PAUPERIS IN THIS ACTION Plaintiff Hector Clarence Anderson is proceeding pro se in this civil rights action pursuant to 17 18 ) ) ) ) ) ) ) ) ) ) 42 U.S.C. § 1983. 19 Plaintiff filed the instant action on November 16, 2020. (ECF No. 1.) Plaintiff has not paid the 20 filing fee or submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 For 21 the reasons discussed below, the Court recommends that Plaintiff not be allowed to proceed in forma 22 pauperis and that Plaintiff instead be required to pay the filing fee if he wishes to proceed with this 23 action. 24 /// 25 /// 26 27 28 1 However, on November 16, 2020, Plaintiff did file a notice regarding the in forma pauperis application stating, “[t]he missing application to proceed I.F.P. is filed with VSP inmate trust office with simple instructions to use pre-addressed paid-postage envelope and send directly to the court, today.” (ECF No. 2.) 1 1 I. 2 DISCUSSION 3 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 4 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 5 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 6 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 7 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 8 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 9 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 10 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 11 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 12 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 13 U.S.C. § 1915(g). 14 A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) and is 15 precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the complaint was filed, 16 under imminent danger of serious physical injury. The Court takes judicial notice of the following cases: 17 (1) Anderson v. Kernan, et al., CAED No. 1:18-cv-00021-LJO-BAM (PC), dismissed for failure to state 18 a claim on August 10, 2018; (2) Anderson v. Silva, CAED No. 8:18-cv-01612-LJO-BAM (PC), 19 dismissed for failure to state a claim on February 20, 2019; and (3) Anderson v. Keefe Commissary 20 Network, LLC, et al., CACD No. 2:19-cv-04892-VAP-FFM, dismissed for failure to state a claim on 21 June 12, 2019. All of these actions were dismissed before Plaintiff filed the present action on November 22 12, 2020. Plaintiff has been informed in at least one other case that he is subject to § 1915(g). See 23 Anderson v. Kernan, et al., CAED No. 1:19-cv-01048-LJO-SKO (PC), in forma pauperis status denied 24 and dismissed for failure to pay filing fee on November 18, 2019. 25 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 26 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 27 28 2 1 the conditions he faced at the time he filed his complaint on November 12, 2020.2 Andrews, 493 F.3d 2 at 1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 3 as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits- 4 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. Here, the Court finds that Plaintiff’s allegations fail to demonstrate imminent danger of serious 5 6 physical injury at the time of filing. Plaintiff contends that his housing pod at Valley State Prison has 7 seven inmates in an area with 25.2 square feet per person. The prison is currently operating under a 8 modified program restricting access to yard, dayroom, work assignment, education or rehabilitative 9 programs, etc. Inmates are typically confined to their pods for 20 to 22 hours per day. When an 10 inmate tests positive for COVID-19 there is zero movement, and inmates are required to pod fed 11 during meal program. Plaintiff is suffering mental distress and physical restraint and requests to be 12 granted early release from prison. While certain inmates may be at high risk for suffering complications from COVID-19, there 13 14 are not allegations that Plaintiff is a high risk inmate. Nor has Plaintiff demonstrated that the specific 15 conditions upon which he is housed prevents him from taking basic protective precautions, such as 16 washing his hands frequently and avoiding touching his face and mouth. Moreover, prison authorities 17 can isolate inmates and employees who have tested positive or who are high risk. Rather than 18 demonstrating imminent danger of serious physical injury, the gist of Plaintiff’s complaint revolves 19 around the lockdown status and his request to be released from prison early. Accordingly, Plaintiff 20 has failed to plausibly demonstrate that he was in imminent danger of serious physical injury. 21 Accordingly, the imminent danger exception to § 1915(g)’s three-strikes provision cannot and does 22 not apply here, and Plaintiff is precluded from proceeding in forma pauperis in this action. 23 /// 24 /// 25 /// 26 27 28 2 Under the mailbox rule, a prisoner's pleading is “deemed filed when he hands it over to prison authorities for mailing to the relevant court.” Houston v. Lack, 487 U.S. 266, 276 (1988); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). 3 1 II. 2 CONCLUSION AND RECOMMENDATIONS Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 3 4 Judge to this action. 5 Further, it is HEREBY RECOMMENDED that, pursuant to 28 U.S.C. § 1915(g), Plaintiff not be 6 allowed to proceed in forma pauperis and instead be directed to pay the $400.00 filing fee in full if he wishes 7 to proceed with this action. These Findings and Recommendations will be submitted to the United States District Judge 8 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 10 after being served with these Findings and Recommendations, Plaintiff may file written objections 11 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 13 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 Dated: 18 November 18, 2020 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 4

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