Ortega v. Unknown

Filing 31

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/23/13 GRANTING 20 Motion to Revoke Plaintiff's in forma pauperis. Plaintiff shall pay the $350.00 filing fee for this action within 14 days. Failure to pay the filing fee within 14 days will result in a recommendation that this action be dismissed. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAZARUS D. ORTEGA,

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Plaintiff,

No. 2:11-cv-2735 GEB CKD P

Defendant.

ORDER

vs.
HEITKAMP,

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Plaintiff is a state prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On March 23, 2012, the court granted plaintiff’s motion to

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proceed in forma pauperis after the court determined that plaintiff had demonstrated that he is

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unable to afford the filing fee for this action. Defendant has now filed a motion asking that

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plaintiff’s in forma pauperis status be revoked.

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Title 28 U.S.C. § 1915(g) reads as follows:

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In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding [in forma pauperis] 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
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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Defendant identifies three cases as potential § 1915(g) “strikes:”1

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1. Ortega v. Walker, 2:10-cv-0998 GEB JFM P (E.D. Cal.)

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In this action, plaintiff sought relief under 42 U.S.C. § 1983. The case was

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dismissed because the claims alleged by plaintiff implied the invalidity of prisoner disciplinary

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proceedings which resulted in revocation of good conduct sentence credit. In Heck v. Humphrey,

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512 U.S. 477, 487 (1994), the U.S. Supreme Court found that a plaintiff could not proceed with a

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suit for damages under § 1983 if the claims imply the invalidity of a criminal conviction or

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sentence which had not already been invalidated via an appropriate means for doing so like a

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federal petition for writ of habeas corpus. Later, this rule from Heck was extended to prison

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disciplinary proceedings resulting in the loss of good conduct sentence credit. See Edwards v.

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Balisok, 520 U.S. 641, 644-48 (1997).

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In Heck, the Supreme Court indicated that a dismissal pursuant to the rule

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announced therein was, in more general terms, dismissal due to the lack of “the existence of a

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cause of action.” Heck, 512 U.S. at 487. If there is no cause of action, there is no claim stated

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upon which relief can be granted. That being the case, Ortega v. Walker is a “strike” under 28

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U.S.C. § 1915(g).

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2. Ortega v. Hong, 4:10-cv-3476 SBA (N.D. Cal.)

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This action was dismissed explicitly for failure to state a claim upon which relief

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can be granted on September 10, 2010 as plaintiff attempted to sue private individuals under 42

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U.S.C. § 1983 despite the fact that a defendant in a potentially valid § 1983 claim must have

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been acting under color of state law. Plaintiff does not challenge that this action constitutes a

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strike under § 1915(g). Good cause appearing, the court finds that Ortega v. Hong is plaintiff’s

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second “strike.”

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/////

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Judgement was final in all three cases before plaintiff commenced this action.
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3. Ortega v. Giamalvo, 4:06-cv-6982 SBA (N.D. Cal.)

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On April 26, 2007, this case was screened pursuant to 28 U.S.C. § 1915A. The

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case was dismissed without prejudice because it appeared on the face of the complaint to the

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court that plaintiff had failed to exhaust administrative remedies prior to filing suit. See Dkt. No.

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4. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court found that failure to exhaust

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administrative remedies is an affirmative defense; meaning plaintiffs are not required to plead

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that they exhausted administrative remedies. Id. at 212. However, the court indicated that when

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the basis for an affirmative defense appears on the face of a complaint, the complaint is subject to

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dismissal for failure to state a claim because the allegations in the complaint taken as true show

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that plaintiff is not entitled to relief. Id. at 215. In essence, the dismissal in Ortega v. Giamalvo

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which occurred at the screening stage was a dismissal for failure to state a claim upon which

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relief can be granted. Therefore, Ortega v. Giamalvo is plaintiff’s third “strike.”2

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In determining whether a plaintiff has made a sufficient allegation of imminent

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danger of serious physical injury, which would allow a plaintiff who has “struck out” to still

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proceed in forma pauperis, the court asks whether the plaintiff has made a plausible allegation in

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his complaint that such danger existed at the time of filing. Andrews v. Cervantes, 493 F.3d

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1047, 1055 (9th Cir. 2007).

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Plaintiff’s claims arise from an allegation that he was involuntarily administered

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intravenous “antipsychotic” medication ordered by defendant–a psychiatrist–on December 26,

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2010 at California State Prison, Sacramento. Plaintiff does not seek injunctive relief, only

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monetary damages. Plaintiff fails to point to anything suggesting that when he filed this action in

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The court notes that after Ortega v. Giamalvo, 4:06-cv-6982 SBA was dismissed,
plaintiff commenced another action; Ortega v. Giamalvo, 3:07-cv-4436 EDL. In that action,
some of plaintiff’s claims survived a motion to dismiss for failure to exhaust administrative
remedies. See Dkt. No. 94. Whatever happened in 3:07-cv-4436 EDL is of little consequence
here, however. If plaintiff wished to challenge the finding that the face of the complaint filed in
4:06-cv-6982 SBA established that plaintiff failed to exhaust administrative remedies, he should
have appealed in that case. He did not and fails to provide any explanation why not.
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October of 2011, he was under imminent danger of being subjected to similar actions by

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defendant or otherwise under imminent danger of serious physical harm.

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For these reasons, the court will grant defendant’s motion to revoke plaintiff’s in

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forma pauperis status. Plaintiff will be ordered to pay the filing fee within 14 days. If plaintiff

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does not pay the filing fee within 14 days, the court will recommend that this action be

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dismissed.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to revoke plaintiff’s in forma pauperis status (Dkt. No. 20)

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is granted.

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2. Plaintiff shall pay the $350 filing fee for this action within 14 days. Failure to
pay the filing fee within 14 days will result in a recommendation that this action be dismissed.
Dated: January 23, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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