Million v. Walker et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 4/4/2014 DENYING plaintiff's 2 request to proceed IFP, as plaintiff is barred by the "three-strikes" provision of 28 U.S.C. § 1915(g) from so proceeding; plaintiff has 30 days to pay the filing fee in full in order to proceed in this action; failure to do so will result in dismissal of this case. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLIE LEE MILLION,

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Plaintiff,

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v.

No. 2:13-cv-1383 AC P

ORDER

J. WALKER, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Plaintiff has

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consented to the jurisdiction of the undersigned. ECF No. 6. Plaintiff is a “three-strikes” litigant.

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See below. By order filed on September 12, 2013, plaintiff was ordered to show cause, within

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thirty days, why he should be allowed to proceed in this action in forma pauperis by

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demonstrating that he was in imminent danger of serious physical injury at the time of the filing

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of the instant complaint. ECF No. 7. In the alternative, plaintiff was informed that he could pay

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the filing fee in full within thirty days. Plaintiff did not pay the filing fee but did file a response.

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ECF No. 8.

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Three Strikes

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The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States

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to authorize the commencement and prosecution of any suit without prepayment of fees by a
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person who submits an affidavit indicating that the person is unable to pay such fees. However,

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[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section 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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28 U.S.C. § 1915(g).

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The plain language of the statute makes clear that a prisoner is precluded from bringing a

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civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions

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and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d

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1176, 1178 (9th Cir. 1999). Plaintiff, who appears to concede that he is a three-strikes litigant by

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characterizing himself as a “vexatious litigant,” appears to be barred from proceeding in this

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action in forma pauperis pursuant to 28 U.S.C. § 1915(g). According to the three-strikes national

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database,1 of which this court takes judicial notice,2 plaintiff has been determined to have been

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foreclosed under § 1915(g) from proceeding in forma pauperis in a prisoner civil rights action

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since 2002. In Million v. Vasconcellos, Case No. 2:03-cv-0054 LKK GGH P (dismissed as

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barred by § 1915(g)’s three-strikes provision by order filed on September 9, 2003), the following

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cases were noted as having been, prior to the filing of that action, qualified as strikes:

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Million v. Marshall, No. 3: 91-cv-03873 JPV (N.D. Cal.) – dismissed as frivolous by
order filed on March 23, 1992;

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Million v. Crowell., No. 1: 99-cv-05972 OWW HGB – dismissed with prejudice for
failure to state a claim on March 22, 2002;

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Million v. Davis, No. 1:00-cv-06117 AWI HGB – dismissed for failure to state a claim by
order filed on April 10, 2002;

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Million v. Ortiz, No. 1:02-cv-5046 REC DLB – dismissed for failure to state a cognizable
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A Ninth Circuit committee has referred the court to this database for PLRA three-strikes
screening purposes.
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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981).
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claim by order filed May 29, 2002.

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As plaintiff has been informed, unless the allegations of the complaint satisfy the

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“imminent danger of serious physical injury exception,” plaintiff will not be able to proceed in

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this action absent payment of the full filing fee. To meet the exception, plaintiff must have

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alleged facts that demonstrate that he was “under imminent danger of serious physical injury” at

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the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)

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(“the exception applies if the complaint makes a plausible allegation that the prisoner faced

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‘imminent danger of serious physical injury’ at the time of filing.”); see also, Abdul–Akbar v.

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McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93

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(11th Cir.1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144

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F.3d 883, 884 (5th Cir. 1998) (per curiam).

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In the instant complaint, plaintiff -- who is currently housed at Salinas Valley State Prison

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(SVSP), as he was at the time the complaint was filed -- names more than 35 defendants as

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responsible for alleged race-based lockdowns to which he was subject at California State Prison-

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Sacramento (CSP-Sac). See Complaint. The gravamen of plaintiff’s complaint appears to be that

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from mid-June through mid-August of 2010, his Eighth and Fourteenth Amendment rights were

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violated by the lockdown of “non-affiliated black inmates.” Plaintiff also alleges that some

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defendants staged two gladiator fights between disruptive African-American and Southern

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Hispanic inmates to keep non-affiliated black inmates (presumably such as himself) on lockdown.

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Plaintiff seeks declaratory relief and money damages. See Complaint at 2-17.

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In plaintiff’s response to the order to show cause, he alleges that he was retaliated against

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for participating in a group appeal against rogue “green wall” correctional officers and was

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“unlawfully” transferred (presumably from CSP-Sac) to SVSP’s “suicide program” without a

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classification hearing and without proper notice. ECF No. 8 at 1. He claims that SVSP is a “less

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favorable institution where green wall gangmember officers started.” Id. He alleges that prison

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staff at SVSP do not like black inmates and do not obey their own policies and procedures and

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that plaintiff, as “a black Hebrew Israelite” has been subjected to racism there for the three years

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since his arrival. Id. at 2. Plaintiff claims he has had no disciplinary action brought against him
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but is nevertheless subjected to cruel and unusual punishment in the form of being denied fresh

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air and exercise due to confinement to his cell for extended periods. Id. at 3. Plaintiff provides

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exhibits showing that both black and Northern Hispanic inmates at SVSP had been placed for an

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undefined period on a modified program as a result of several riots. ECF No. 8 at 24.

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Plaintiff’s entire focus is on the alleged conditions of his incarceration at SVSP, following

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the incidents at CSP-Sac that give rise to his claims. The complaint, from which this court must

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determine whether § 1915(g) is satisfied, addresses events and conditions at CSP-Sac in 2010.

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Neither the complaint nor the response to the order to show cause allege facts that demonstrate a

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plausible risk of serious physical injury to plaintiff. Racial discrimination and retaliation of the

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types alleged do not create an imminent danger of physical injury, which is required to meet the §

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1915(g) exception. To the extent plaintiff contends that he currently faces a risk of harm in the

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form of retaliatory conditions, those allegations may not be considered because they post-date the

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filing of the complaint.

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The court finds that plaintiff has failed to meet the “imminent danger” exception of §

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1915(g) and that he is accordingly barred from proceeding in this action in forma pauperis.

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Plaintiff will be granted thirty days to pay the $350.00 statutory filing fee in full. Failure to do so

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will result in dismissal of this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is denied as plaintiff is

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barred by the “three-strikes” provision of 28 U.S.C. § 1915(g) from so proceeding.

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2. Plaintiff is granted thirty days to pay the filing fee in full in order to proceed in this

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action; failure to do so will result in dismissal of this case.
DATED: April 4, 2014

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