Weaver v. Davisson

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/28/14 REASSIGNING CASE to Chief Judge Morrison C. England, Jr and Magistrate Judge Dale A. Drozd for all further proceedings. New Case Number: 2:14-cv-1906 MCE DAD (PC). RECOMMENDING that this action be dismissed without prejudice for failure to state a claim. Referred to Judge Morrison C. England, Jr. Objections due within 14 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIE WEAVER,

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Plaintiff,

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No. 2:14-cv-1906 DAD P

v.

ORDER and

HILARY K. DAVISSON,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights complaint pursuant to

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42 U.S.C. § 1983. Plaintiff has neither paid the filing fee nor submitted an application to proceed

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in forma pauperis.
The undersigned takes judicial notice1 of the National Pro Se Three-Strikes Database,2

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which indicates that plaintiff has been designated a “three strikes litigant” under 28 U.S.C. §

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1915(g). Such designation precludes in forma pauperis status to a prisoner bringing a civil action

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who has brought three or more prior actions that were dismissed as frivolous, malicious, or for

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failure to state a claim upon which relief may be granted, unless the prisoner demonstrates that he

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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. 1981).
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The National Pro Se Three-Strikes Database is at http://nprose.circ9.dcn/Litigant.aspx.
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is under imminent danger of serious physical injury at the time he commenced the new action.3

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Plaintiff has been designated a three strikes litigant in at least three prior cases, 4 which together

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cite several instances when plaintiff’s complaints have been dismissed as frivolous, malicious or

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for failure to state a claim. This court has reviewed the basis of the findings in those cases and

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concurs that plaintiff has suffered at least three prior strike dismissals as defined by the statute.5

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As a three strikes litigant, plaintiff may not proceed in forma pauperis in the present action

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unless he demonstrates that he was “under imminent danger of serious physical injury” when he

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filed his complaint. 28 U.S.C. § 1915(g). The imminent danger exception applies only if it is

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clear that the danger existed when the complaint was filed. Andrews v. Cervantes, 493 F.3d

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1047, 1053 (9th Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352

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F.3d 328, 330 (7th Cir. 2003), and must be ongoing, Andrews, 493 F.3d at1056. Allegations that

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are overly speculative or fanciful may be rejected. Id. at 1057 n.11. Absent a showing that

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In 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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Title 28 U.S.C. § 1915(g) provides:

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See Weaver v. Gory et al., Case No. 2:09-cv-09288 UA MLG P (C.D. Cal. 2009) (ECF No. 3);
Weaver v. California Correctional Institution et al., Case No. 1:06-cv-01429 OWW SMS P (E.D.
Cal. 2007) (ECF 4); Weaver v. Deuel Vocational Institution, Case No. 2:13-cv-01471 MCE EFB
P (E.D. Cal. 2013) (ECF 4).
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In this regard, the undersigned takes judicial notice of the following cases: (1) Weaver v.
California Correctional Institution Confinement SHU, Case No. 1:06-cv-00671 OWW SMS P
(E.D. Cal. 2006) (dismissed July 17, 2006 as frivolous and for failure to state a claim (ECF No.
6)); (2) Weaver v. California Correctional Institution Third Watch Lieutenant, Case No. 1:06-cv00775 OWW LJO P (E.D. Cal. 2006) (dismissed July 17, 2006 as frivolous and for failure to state
a claim (ECF No. 4)); (3) Weaver v. California Correctional Institution, Case No. 1:06-cv-00863
OWW SMS P (E.D. Cal. 2006) (dismissed August 1, 2006 for failure to state a claim (ECF No.
4)); (4) Weaver v. Appeal Coordinator, Case No. 1:06-cv-00134 OWW DLB P (E.D. Cal. 2006)
(dismissed August 28, 2006 for failure to state a claim (ECF Nos. 15, 11)); (5) Weaver v.
California Correctional Institution, Case No. 1:04-cv-06079 LJO WMW P (E.D. Cal. 2006)
(dismissed December 7, 2007 for failure to state a claim (ECF No. 40)).
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plaintiff was under imminent danger of serious physical injury at the time he filed his complaint,

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his only option for proceeding with this action is to pay the full filing fee.

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Plaintiff is currently incarcerated at Pelican Bay State Prison. In his complaint now before

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this court, plaintiff seeks damages for the alleged ineffectiveness and deliberate indifference of

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his trial counsel. Plaintiff also states that he “is just asking to renew case, with new case No#.”

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(ECF No. 1 at 3.) The pending complaint does not challenge any conditions of plaintiff’s current

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confinement and thus alleges no imminent danger of serious physical injury. Therefore, plaintiff

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may not proceed in forma pauperis in this action.

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Moreover, the undersigned finds that the instant complaint fails to state a claim upon

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which relief may be granted. See 28 U.S.C. § 1915A(b)(1). Review of plaintiff’s other cases

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pending in this court demonstrates that plaintiff is pursuing his ineffective assistance claim

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against his prior attorney in a separate habeas corpus action. See Weaver v. Barnes, Case No.

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2:14-cv-00026 LKK EFB P. (See id., ECF No. 1 at 3-7.) Because that action is still pending,

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plaintiff is unable demonstrate that he has prevailed on his ineffective assistance claim. He is

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therefore barred from seeking damages in this civil rights action. Heck v. Humphrey, 512 U.S.

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477, 486-87 (1994) (“[I]n order to recover damages for . . . harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove

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that the conviction or sentence has been reversed on direct appeal, expunged by executive order,

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declared invalid by a state tribunal authorized to make such determination, or called into question

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by a federal court’s issuance of a writ of habeas corpus.”) Plaintiff may file a new action

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mirroring the instant action only if he prevails in his habeas corpus action.6

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For the reasons set forth above, the instant action must be dismissed without leave to

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amend. “It is not an abuse of discretion to deny leave to amend when any proposed amendment

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would be futile.” Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990) (citation

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omitted).

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However, even if plaintiff prevails in his habeas action, he may otherwise be precluded from
pursuing a § 1983 action against his prior attorney since, as a matter of law, county public
defenders are not state actors for purposes of § 1983. Miranda v. Clark County, 319 F.3d 465,
468-69 (9th Cir. 2003).
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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a
district judge to this action.
In addition, for the reasons set forth above, IT IS HEREBY RECOMMENDED that
this action be dismissed without prejudice for failure to state a claim.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: August 28, 2014

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DAD:4
weav1906.3strikes.scrn

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