Bontemps v. Salinas et al

Filing 34

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/4/13 ORDERING that the Clerk of the Court is directed to randomly assign a United States District Judge to this action. It is RECOMMENDED that Defendants motions to revoke plaintiffs IFP status 24 and 26 be denied; and Defendants be directed to file an answer in this action within 21 days. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Plaintiff,

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vs.

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No. 2:10-cv-2345 DAD P

SALINAS, et al.,

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ORDER AND

Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se seeking relief pursuant to 42 U.S.C.

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§ 1983. Pending before the court are defendants’ motions to revoke plaintiff’s in forma pauperis

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(“IFP”) status pursuant to 28 U.S.C. § 1915(g) or, in the alternative, to revoke his IFP status

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because plaintiff has engaged in abusive litigation practices. Plaintiff has filed an opposition to

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the motions, and defendants have filed a reply.

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MOTIONS TO REVOKE IFP STATUS PURSUANT TO § 1915(g)
The federal IFP statute includes a limitation on the number of actions in which a
prisoner can proceed IFP. It states:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under [§ 1915] if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
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frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent
danger of serious physical injury.

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28 U.S.C. § 1915(g). “[T]he plain language of § 1915(g) requires that the court look at cases

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dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a

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prisoner has used his three strikes.” Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).

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For purposes of § 1915(g), the court must determine whether plaintiff has, on

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three or more occasions prior to the filing of this new action, brought a civil action or appeal that

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was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon

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which relief could be granted. Where a court denies a prisoner’s application to file an action

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without prepayment of fees on the grounds that the submitted complaint is frivolous, malicious

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or fails to state a claim upon which relief may be granted, the court has “dismissed” the

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complaint for purposes of § 1915(g). See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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In this case, defense counsel argues that plaintiff has filed ten prior actions that the

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court has dismissed because they were frivolous, malicious, or failed to state a claim for relief.

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(Defs.’ Mot. to Dismiss at 4-5 & Exs. 1-10.) In five of the cases counsel lists, the court first

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dismissed plaintiff’s complaint with leave to amend for failure to state a claim, plaintiff failed to

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file an amended complaint, and the court dismissed the action. (Id., Exs. 1-5.) In four of the

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cases listed by counsel, the court denied plaintiff’s request to proceed IFP and dismissed the case.

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(Id., Exs. 6-9.) Finally, in the last case relied upon by defense counsel, the court dismissed

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plaintiff’s claims “with prejudice to bringing them in another unpaid complaint” and dismissed

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the case. (Id. Ex. 10.)

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Even assuming for the sake of argument that three of the above-mentioned cases

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constituted strikes for purposes of § 1915(g), there is an exception to the three-strikes rule of that

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provision. The exception allows a prisoner to use IFP status to bring a civil action despite three

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prior dismissals where the prisoner is under imminent danger of serious physical injury. See

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Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007) (“[A] prisoner who alleges that
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prison officials continue with a practice that has injured him or others similarly situated in the

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past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of the three-strikes

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exception.”).

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Defense counsel summarily contends in a footnote that the exception to § 1915(g)

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has no application to this case because plaintiff did not allege that he was in any “imminent

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danger” when he brought this action. The court disagrees. In plaintiff’s original complaint, he

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alleged that he had immediate medical care needs that the defendants were ignoring.

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Specifically, plaintiff alleges as follows. On April 28, 2010, he began experiencing a severe

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migraine headache with pain was so severe that his eyes began to hurt, he became nauseated, and

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he started to vomit. A nurse provided him with ibuprofen, but the medication did not help.

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Plaintiff fell to the floor, and prison officials took him to the hospital where he underwent an

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M.R.I. Plaintiff learned that he had a 2x2 tumor on his brain. According to plaintiff, his doctor

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told him he might die if he does not receive surgery to remove it. Plaintiff alleged that he had not

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received proper follow-up care since his hospital visit. (Compl. at 8-13.) Contrary to defense

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counsel’s contention, the court finds that plaintiff had set forth plausible allegations that he was

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“under imminent danger of serious physical injury” at the time he filed his complaint in this

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action.1 See Andrews, 493 F.3d at 1056; Bradford v. Vella-Lopez, No. 11-17176, 2012 WL

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4888396 at *1 (9th Cir. Oct. 9, 2012)2 (prisoner set forth plausible allegations that he was “under

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imminent danger of serious physical injury,” as that term is used in § 1915(g), due to defendants

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The court recognizes that plaintiff is now proceeding on a second amended complaint
and that in screening that complaint the court determined that plaintiff appeared to state a
cognizable claim for excessive use of force but did not state a cognizable claim for deliberate
indifference to his medical needs. Nevertheless, as noted above, the exception to § 1915(g)
applies “if the danger existed at the time the prisoner filed the [original] complaint.” Andrews,
493 F.3d at 1053. The Ninth Circuit has made clear that Ҥ 1915(g) concerns only a threshold
procedural question - whether the filing fee must be paid upfront or later. Separate PLRA
provisions are directed at screening out meritless suits early on.” Id. at 1055.

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth
Circuit Rule 36-3(b).
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refusal to treat his blood clotting disorder).
Accordingly, defendants’ motions to revoke plaintiff’s IFP status pursuant to §
1915(g) should be denied.
MOTIONS TO REVOKE IFP STATUS BECAUSE OF ABUSIVE LITIGATION
Defense counsel also argues that even if plaintiff is not barred from proceeding

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IFP under § 1915(g)’s three-strikes rule, the court should revoke his IFP status because he is an

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“abusive filer.” (Defs.’ Mot. to Dismiss at 5.) Counsel contends that the sheer volume of

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plaintiff’s filings indicate that his litigation practices are abusive. Defense counsel contends that

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in the last eighteen years, plaintiff has filed at least twenty-three federal actions, five of which he

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is litigating concurrently with this action, and that plaintiff has yet to prevail in a single action.

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(Id. & Exs. 1-13.) In addition, defense counsel contends that plaintiff has a practice of litigating

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an action for months, or even years, and then forcing the court to dismiss it for failure to

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prosecute. For example, counsel notes, plaintiff has failed to amend his complaint or to submit

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service documents with respect to his potentially cognizable claims. He has also failed to oppose

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defendants motions for summary judgment and allowed for default dismissal. Finally, counsel

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contends that plaintiff misrepresented his litigation history in this case by stating on his form

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complaint that he only had one previous or pending lawsuit in addition to this case. (Id. at 6-7.)

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The “court has inherent power to restrict a litigant’s ability to commence abusive

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litigation in forma pauperis.” Visser v. Supreme Court of California, 919 F.2d 113, 114 (9th Cir.

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1990). In Visser, a pro se petitioner brought five petitions for a writ of mandamus and requested

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leave to proceed IFP with each petition. In the preceding sixteen months, the petitioner had filed

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eleven similar petitions and requests to proceed IFP. The Ninth Circuit denied petitioner’s

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request to proceed IFP, explained that his petitions contained “vague, rambling diatribes,” and

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concluded that he had “engaged in a pattern of litigation which [was] manifestly abusive.” The

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court directed the Clerk of the Court not to accept any further mandamus petitions from the

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petitioner unless accompanied by the appropriate fee. Id. at 114.
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Based on the record before this court, the court cannot say this case is like that

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presented in Visser. Specifically, defense counsel has submitted for the court’s review copies of

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magistrate judge screening orders and subsequent findings and recommendations, recommending

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dismissal of some of plaintiff’s prior cases for failure to amend as well as district judge orders

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adopting those findings and recommendations. (Defs.’ Mot. to Dismiss, Exs. 1-5.) Counsel has

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also submitted copies of docket sheets from some of plaintiff’s prior cases, which indicate the

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court denied his requests to proceed in forma pauperis and dismissed the actions. (Id. Exs. 6-9.)

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Although counsel’s exhibits may indicate that plaintiff is litigious, the undersigned cannot say,

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based on counsel’s submissions, that plaintiff’s prior complaints contained “vague, rambling

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diatribes” or that plaintiff has “engaged in a pattern of litigation which is manifestly abusive.”

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Visser, 919 F.2d at 114. Defendants have simply failed to present sufficient evidence upon

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which the court could make such a determination. See Bontemps v. Sotak, No. 2:09-cv-2115

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LKK EFB P, 2013 WL 178210 at *4-6 (E.D. Cal. Jan. 16, 2013) (defendants failed to submit

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adequate evidence to demonstrate Bontemps engaged in abusive litigation and should have his

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IFP status revoked).

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Accordingly, defendants’ motion to revoke plaintiff’s IFP status on the grounds
that he is an “abusive filer” should be denied.

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CONCLUSION

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IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly
assign a United States District Judge to this action.

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IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motions to revoke plaintiff’s IFP status (Doc. Nos. 24 & 26) be

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denied; and

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2. Defendants be directed to file an answer in this action within twenty-one days.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 4, 2013.

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DAD:9
bont2345.57

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