(PC) Jones v. Manu et al

Filing 6

ORDER DIRECTING Clerk of the Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Deny 2 Application to Proceed In Forma Pauperis re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 8/30/2024. Referred to Judge Thurston; Objections to F&R due within 14 days. (Rivera, O)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

HENRY A. JONES,

12

Plaintiff,

13
14

v.
BANSAL MANU, et al.,

15

Defendants.

Case No.: 1:24-cv-00997-SKO
FINDINGS AND RECOMMENDATIONS TO
DENY APPLICATION TO PROCEED IN
FORMA PAUPERIS
(Doc. 2)
14-DAY OBJECTION PERIOD
Clerk of the Court to Assign District Judge

16
17
18

Plaintiff Henry A. Jones is proceeding pro se in this civil rights action pursuant to 42

19

U.S.C. § 1983. On August 22, 2024, Plaintiff filed an Application to Proceed In Forma Pauperis

20

(IFP). (Doc. 2.)

21

Because Plaintiff has accrued three or more “strikes” under section 28 U.S.C. § 1915 and

22

fails to show that he is under imminent danger of serious physical injury, the Court will

23

recommend that his IFP application be denied.

24

I.

25

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs IFP proceedings. The statute provides that “[i]n no event shall a

26

prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

27

occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

28

the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

1

a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

2

physical injury.” 28 U.S.C. § 1915(g).
In determining whether a case counts as a “strike,” “the reviewing court looks to the

3
4

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

5

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

6

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

7

II.

The Court takes judicial notice1 of several prior lawsuits filed by Plaintiff in this Court,

8
9

DISCUSSION

other district courts in this Circuit, and in the Ninth Circuit Court of Appeals:

10

Eastern District of California

11

1. Jones v. Macher, No. 1:05-cv-257-OWW-SMS (E.D. Cal.) (dismissed for failure to state a

12

claim on May 26, 2005)

13

2. Jones v. Milligan, No. 1:05-cv-307-SMS (E.D. Cal.) (dismissed for failure to state a claim

14

on October 17, 2008)

15

Central District of California

16

3. Jones v. Pregerson, No. 2:15-cv-6797-MWF-PLA (C.D. Cal.) (denying IFP and

17

dismissing as frivolous, malicious, or failure to state a claim on December 4, 2015)

18

4. Jones v. Pregerson, No. 2:16-cv-409-TJH-MRW (C.D. Cal.) (denying IFP and dismissing

19

as frivolous, malicious, or failure to state a claim on January 27, 2016)

20

5. Jones v. Wu, No. 2:16-cv-2698-DDP-SS (C.D. Cal.) (denying IFP and dismissing as

21

frivolous, malicious, or failure to state a claim on October 4, 2016)

22

6. Jones v. Pregerson, No. 2:16-cv-7978-PA-JEM (C.D. Cal.) (denying IFP and dismissing

23

as frivolous, malicious, or failure to state a claim on November 8, 2016)

24

7. Jones v. Pregerson, No. 2:19-cv-7875-GW-JEM (C.D. Cal.) (denying IFP and dismissing

25

as frivolous, malicious, or failure to state a claim on November 4, 2019)

26
27
28

1

The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980).

2

1
2

Southern District of California
8. Jones v. Hailey, No. 3:20-cv-215-GPC-KSC (S.D. Cal.) (dismissed for failure to state a

3

claim on August 14, 2020)

4

Ninth Circuit Court of Appeals

5
6
7

9. Jones v. Pregerson, No. 16-56839 (9th Cir.) (appeal dismissed as frivolous on June 13,
2017)
A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g).

8

Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). And an appeal

9

dismissed as frivolous constitutes a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir.

10

2016). Because Plaintiff has incurred at least three prior “strikes, and each was dismissed prior to

11

the commencement of the current action on August 22, 2024, Plaintiff is subject to the section

12

1915(g) bar. Moreover, he is precluded from proceeding IFP in this action unless, at the time he

13

filed his complaint, he was under imminent danger of serious physical injury. See Andrews v.

14

Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).

15

The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations

16

do not meet the imminent danger exception. Plaintiff alleges Eighth Amendment deliberate

17

indifference to serious medical needs claims against a physician, a correctional sergeant, and an

18

associate warden at Valley State Prison. (Doc. 1.) Plaintiff appears to allege that his left leg

19

began to swell, he had pain in both legs, and they “turn[ed] black” in June 2024. (Id. at 3.)

20

Plaintiff requested pain medication and “treatment w/respects to the dislodge Brokin lead,”

21

apparently in reference to his defibrillator leads dislodging in 2021. (Id. at 9, 10.) Dr. Manu

22

Bansal prescribed Tylenol. (Id. at 3, 10-11.) Plaintiff also alleges a correctional counselor (not

23

named as a defendant) falsified an appeal log “to help this Dr. cover up his criminal act.” (Id.)

24

Plaintiff states his legs may have to be amputated. (Id.) Plaintiff alleges that Sergeant A. Espinosa

25

was deliberately indifferent by denying his reasonable accommodation request and interfering

26

with his medical treatment. (Id. at 4.) By “failing to act” and “ha[ving] no doctor’s degree,”

27

Espinosa is causing Plaintiff continued pain and sleep deprivation. (Id.; see also id. at 11.)

28

Plaintiff contends Associate Warden B. Davi is responsible for reasonable accommodation
3

1

appeals but failed to “check” that the issue complained of had been addressed correctly. (Id. at

2

11.) Plaintiff alleges these “claims are ongoing” and that he has “passed through 4 Prisons, and

3

each of them refuse to request for treatment or and referral.” (Id.) Plaintiff states his claims satisfy

4

the threshold for imminent danger and he seeks damages, injunctive relief, medical treatment, and

5

a transfer. (Doc. 1 at 7, 12.)

6

Plaintiff’s allegations are insufficient to establish imminent danger of serious physical

7

injury. A denial of pain medication to treat swelling is insufficient to establish Plaintiff is in

8

imminent danger of serious physical injury. See, e.g., Harris v. Phillips, No. 1:23-cv-01343-GSA-

9

PC, 2023 WL 5956984, at *3 (E.D. Cal. Sept. 12, 2023) (finding plaintiff’s allegations that on

10

“September 7, 2023, one of the Defendants refused to give him medication for his legs and feet”

11

and that “he was denied medication for swollen feet” do not amount to imminent danger of

12

serious physical injury); Henderson v. Williams, No. 03–CV–0216, 2003 WL 21756336, at *1

13

(N.D. Tex. July 30, 2003) (allegations of discontinuance of pain medication and pain and

14

swelling in back and groin insufficient to show imminent danger of serious physical injury).

15

Unlike situations wherein a plaintiff alleges a complete lack of care for a medical condition,

16

Plaintiff disagrees with the course of treatment being offered—he wants something more than

17

Tylenol. That disagreement does not amount to an imminent danger of serious physical injury.

18

Fletcher v. Sherman, No. 1:18-cv-01350 JLT (PC), 2019 WL 2375148, at *1 (E.D. Cal. Mar. 14,

19

2019) (finding no imminent danger of serious physical injury where plaintiff alleged that he was

20

denied care for pain under his right eye but had received care and appeared to have a difference of

21

opinion concerning proper course of treatment for pain).

22

Plaintiff’s assertion that his legs “may” have to be amputated is purely speculative. See

23

Thompson v. Borges, No. 17-00561 LEK-KJM, 2018 WL 10139956, at *1 (D. Haw. Jan. 17,

24

2018) (plaintiff’s allegations regarding rash that “could have become [gangrene] which could lead

25

possibly to amputation or surgery” did not plausibly demonstrate imminent danger of serious

26

physical injury); Blackman v. Mjening, No. 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at

27

*1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of serious physical injury must be a real, present

28

threat, not merely speculative or hypothetical”); see also Ryan v. Michigan, No. 2:20-CV-12502,
4

1

2020 WL 6043439, at *2 (E.D. Mich. Oct. 13, 2020) (“Plaintiff's concerns about potential future

2

harm, such as further nerve damage or muscle loss, paralysis, stroke, heart attack, and death, are

3

speculative and are insufficient to satisfy the exception to the three strikes rule. To be sure, he has

4

managed to carry on despite having most of his ailments for many years and his complaint

5

reflects an ongoing pattern of medical care (although Plaintiff disagrees with the treatment

6

provided)”); Nichols v. Peppers-Davis, No. 5:17-CV-00034 KGB/PSH, 2017 WL 8727191, at *2

7

(E.D. Ark. June 5, 2017) (noting “the Court revoked Nichols’s IFP status and dismissed [a

8

previous] case after the Court determined Nichols was not in imminent danger despite the

9

allegation that his feet may have to be ‘amputated and/or permanently destroyed’”); White v.

10

Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998) (“vague and utterly conclusory assertions” of

11

imminent danger are insufficient).

12

To the extent Plaintiff relies on issues concerning his defibrillator, those claims were the

13

subject of numerous prior lawsuits dismissed by other courts, including findings that no imminent

14

danger of serious physical injury was presented. (See, e.g., Docket, Jones v. Kalinjia, No. 2:23-

15

cv-00186-DDP-JC (C.D. Cal.), Report and Recommendation issued March 5, 2024 [addressing

16

same and stating: “It appears, rather, that since this alleged condition first presented itself in

17

March 2020, multiple doctors at different facilities have examined plaintiff, including by

18

reviewing x-rays for his chest, and none have found cause for further intervention”].)
The “imminent danger” exception is available “for genuine emergencies,” where “time is

19
20

pressing” and “a threat ... is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.

21

2002). Here, Plaintiff’s medical conditions do not present a genuine emergency where time is

22

pressing, and a threat is real and proximate. Therefore, Plaintiff should be precluded from

23

proceeding in forma pauperis in this action. Andrews, 493 F.3d at 1052-53.

24

III.

25
26

ORDER AND RECOMMENDATIONS
Accordingly, the Court DIRECTS the Clerk of the Court to assign a district judge to this

action.

27

For the reasons set forth above, the Court RECOMMENDS that:

28

1. Plaintiff’s application or motion to proceed IFP (Doc. 2) be DENIED; and
5

1

2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days.

2

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

3

Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of

4

service of these Findings and Recommendations, a party may file written objections with the

5

Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and

6

Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

7

waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

8

Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

9
10
11
12

IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

August 30, 2024

.

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6