(PC) Roberts v. Kern Valley State Prison et al

Filing 17

ORDER for Clerk of Court to Randomly Assign a United States District Judge to this Case; FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's In Forma Pauperis Status under 28 U.S.C. § 1915(g) be Revoked, and Plaintiff be Required to Pay the $402.00 Filing Fee in Full within Thirty Days signed by Magistrate Judge Gary S. Austin on 01/04/2023. Referred to Judge de Alba; Objections to F&R due within Fourteen-Days. (Flores, E)

Case 1:22-cv-01505-ADA-GSA Document 17 Filed 01/05/23 Page 1 of 5

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID NATHANIEL ROBERTS,

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Plaintiff,

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v.

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KERN VALLEY STATE PRISON,
et al.,

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1:22-cv-01505-GSA-PC
ORDER FOR CLERK OF COURT TO
RANDOMLY ASSIGN A UNITED STATES
DISTRICT JUDGE TO THIS CASE
AND

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S IN
FORMA PAUPERIS STATUS UNDER 28 U.S.C.
§ 1915(g) BE REVOKED, AND PLAINTIFF BE
REQUIRED TO PAY THE $402.00 FILING FEE
IN FULL WITHIN THIRTY DAYS

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OBJECTIONS, IF ANY, DUE IN 14 DAYS

Defendants.

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I.

BACKGROUND

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David Nathaniel Roberts (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On September 12, 2022,

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Plaintiff filed the Complaint commencing this action at the Sacramento Division of the United

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States District Court for the Eastern District of California. (ECF No. 1.) On September 29, 2022,

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the Court granted Plaintiff’s application to proceed in forma pauperis, (ECF No. 8) and directed

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the California Department of Corrections and Rehabilitation to deduct payments from Plaintiff’s

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prison trust account for payment of the filing fee and forward payments to the Court, (ECF No.
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Case 1:22-cv-01505-ADA-GSA Document 17 Filed 01/05/23 Page 2 of 5

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9). On November 21, 2022, this case was transferred to the Fresno Division of the Court. (ECF

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No. 12.)

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The Court finds that Plaintiff had at least three “strikes” under 28 U.S.C. § 1915(g) prior

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to filing this action and that Plaintiff was not in imminent danger of serious physical injury at the

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time he filed this action. Therefore, the Court will recommend that Plaintiff be required to pay

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the $402 filing fee in full if he wants to proceed with the action.

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) 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

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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, malicious,

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

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danger of serious physical injury.”

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In determining whether a case counts as a “strike,” “the reviewing court looks to the

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dismissing court’s action and the reasons underlying it . . . . This means that the procedural

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mechanism or Rule by which the dismissal is accomplished, while informative, is not

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dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted).

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See also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (“no ‘particular formalities are

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necessary for an order that serves as the basis of [an involuntary] dismissal.’”) (quoting Yourish

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v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir. 1999)) (alteration in original).

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III.

ANALYSIS

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A.

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Plaintiff initiated this action on September 12, 2002. (ECF No. 1). The Court finds that

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prior to this date, Plaintiff had at least three cases dismissed that count as “strikes” under 28

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U.S.C. § 1915. The Court takes judicial notice of the following: 1) Roberts v. Huckleberry, E.D.

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CA, Case No. 1:18-cv-01237, ECF Nos. 35 & 57 (dismissed for failure to state a claim);1 2)

Strikes

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1

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One of the defendants, Kern Valley State Prison, was dismissed because it was entitled
to Eleventh Amendment Immunity. Huckleberry, ECF No. 35 p. 5; ECF No. 57. “Congress’ omission of
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Roberts v. KVSP Investigation Service Unit, E.D. CA, Case No. 1:19-cv-01055, ECF Nos. 12 &

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14 (dismissed for failure to state a claim); 3) and Roberts v. CDC-R Trust Office, C.D. CA, Case

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No. 5:20-cv-00977, ECF No. 5 (dismissed as frivolous, malicious, or for failure to state a claim).2

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B.

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As Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is precluded

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from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in

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imminent danger of serious physical injury. The availability of the imminent danger exception

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“turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier

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or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger of

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serious physical injury must be a real, present threat, not merely speculative or hypothetical.”

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Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden

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under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing serious physical

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injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.”

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Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory

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assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32

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(10th Cir. 1998). See also Martin, 319 F.3d at 1050 (“[C]onclusory assertions” are “insufficient

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to invoke the exception to § 1915(g) . . . .”). The “imminent danger” exception is available “for

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genuine emergencies,” where “time is pressing” and “a threat … is real and proximate.” Lewis

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v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

Imminent Danger

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immunity-based dismissal from the strike provision in § 1915(g) evidences its intent generally not to
include this dismissal ground as a strike.” Harris v. Harris, 935 F.3d 670, 675-76 (9th Cir. 2019). However,
“there are rare cases where an affirmative defense, such as immunity, may be so clear on the face of the
complaint that dismissal may qualify as a strike for failure to state a claim,” id. at 676, and as Plaintiff
was apparently attempting to sue a state agency for money damages in federal court, the Court finds that
this is one of those “rare” cases.
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It appears that this case was dismissed for several independent reasons, including that it
was “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” CDC-R Trust
Office, ECF No. 5, p. 1. As the only comment in the “Comments” section is “Because the California Tort
Claims Act provides an adequate post-deprivation remedy for a prisoner’s property deprivations, Barnett
v. Centoni, 31 F.3d 813 (9th Cir. 1994), no viable due process claim is pleaded,” (id.), it appears that this
action was dismissed for failure to state a claim.
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Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the

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imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the

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‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will

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consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant

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alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a

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favorable judicial outcome would redress that injury. The three-strikes litigant must meet both

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requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 WL

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5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298-99

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(2d Cir. 2009)).

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Because Plaintiff is proceeding pro se, the Court must liberally construe Plaintiff’s

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allegations in making the imminent danger determination. Andrews, 493 F.3d at 1055 (9th Cir.

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2007).
None of the factual allegations in Plaintiff’s Complaint suggest that he was in imminent

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danger of serious physical injury at the time he filed his Complaint on September 12, 2022.

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Plaintiff brings an Eighth Amendment excessive force claim based on a beating by several

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Officers that allegedly happened on July 28, 2018, more than three years before he filed the

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Complaint, and at a time when Plaintiff was incarcerated at Kern Valley State Prison in Delano,

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California.

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California, when he filed the Complaint for this action. There is no indication that the beating

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he allegedly suffered in July 2018 placed Plaintiff in imminent danger of serious physical injury

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in September 2022 while incarcerated at a different state prison.

Plaintiff was incarcerated at California State Prison-Sacramento in Represa,

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As Plaintiff is a “three-striker” and does not appear to have been in imminent danger

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when he filed this action, the Court will recommend that Plaintiff be required to pay the $402

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filing fee in full if he wishes to proceed with the action.3

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The financial department of the Court reports that to date, Plaintiff has not paid any portion of
the $402.00 filing fee owed for this case. (Court Financial Department.)
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IV.

CONCLUSION, ORDER, AND RECOMMENDATIONS

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The Court finds that under U.S.C. § 1915(g), Plaintiff may not proceed in forma pauperis

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in this action. Accordingly, the Clerk of Court IS HEREBY DIRECTED TO randomly assign

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a United States District Judge to this case.

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AND

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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REVOKED;
2.

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

The Court’s order issued on September 29, 2022, granting Plaintiff leave to
proceed in forma pauperis, be VACATED (ECF No. 8);

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The Court’s order issued on September 29, 2022, directing monthly payments be

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made from Plaintiff’s prison trust account for payment of the filing fee, be

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VACATED (ECF No. 9);

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4.

The CDCR be served with a copy of this order; and

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Plaintiff be DIRECTED to pay the $402.00 filing fee in full within thirty days if

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he wants to proceed with this action.

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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 Title 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after the date of service of these findings and recommendations, Plaintiff may file

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

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

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834, 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:

January 4, 2023

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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