Womack v. Mahoney et al.

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/12/2017 RECOMMENDING plaintiff's 2 motion to proceed ifp be denied because he as accrued three strikes under 28 U.S.C. § 1915(g) and has not demonstrated th at he is under imminent danger of serious physical injury; and plaintiff be given 30 days to pay the entire $400.00 in required fees or face dismissal of the case. Referred to Judge Troy L. Nunley; Objections to F&R due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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Plaintiff,

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No. 2:15-cv-2517 TLN AC P

v.

FINDINGS AND RECOMMENDATIONS

T. MAHONEY, 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 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding

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was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I.

Procedural History

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On December 3, 2015, the Clerk of the Court filed plaintiff’s original complaint, in which

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he alleged that defendants Mahoney, Murry, Upshaw, Krause, and Lewis violated his rights under

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the Eighth Amendment. ECF No. 1 at 6-8. Plaintiff alleged that Upshaw and Krause refused to

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treat his PTSD and that Mahoney, Murry, and Lewis, who reviewed his grievances, failed to

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ensure he received treatment after his appeal was partially granted. Id. With the exception of

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Lewis, who was based in Sacramento, the defendants were employed at High Desert State Prison

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(HDSP). Id. at 2-3. Before the court could screen the original complaint or rule on his motion to

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proceed in forma pauperis, plaintiff filed a first amended complaint that alleged that defendants
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Chaiken, Swarthout, and Vargas, who were employed at California State Prison, Sacramento

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(CSP-SAC), violated his Eighth Amendment rights by intentionally misdiagnosing him so that

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they would not have to treat his PTSD. ECF No. 7 at 3. The first amended complaint did not

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contain any of the claims from the original complaint. Compare ECF No. 1 with ECF No. 7.

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In considering plaintiff’s motion to proceed in forma pauperis, the court determined that

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the motion must be denied unless plaintiff was “under imminent danger of serious physical

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injury” at the time he filed the complaint, because he had filed at least three lawsuits which were

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dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.

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ECF No. 8 at 2-3 (citing 28 U.S.C. § 1915(b); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th

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Cir. 2007) (“it is the circumstances at the time of the filing of the complaint that matters for

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purposes of the ‘imminent danger’ exception under § 1915(g)”); Abdul-Akbar v. McKelvie, 239

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F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999)

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Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 885 (5th

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Cir. 1998)).

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The court found that the first amended complaint superseded the original complaint and

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that the first amended complaint did not allege imminent danger because it did not re-state any of

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the claims from the original complaint and the allegations were based on past events. Id. at 3-4.

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Because the original complaint contained facts that potentially demonstrated plaintiff was in

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imminent danger, plaintiff was given the option of proceeding on the first amended complaint or

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filing a second amended complaint. Id. The court warned that “[i]f plaintiff fails to amend, or

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amends but fails to allege facts showing he is in imminent danger, the court will recommend his

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in forma pauperis status be denied.” Id. at 3. Plaintiff chose to file a second amended complaint.

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ECF No. 9.

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II.

Second Amended Complaint
In the second amended complaint, plaintiff alleges that defendants Perry, St. Andre, Lane,

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Sweet, Smith, Nolan, Boretz, and Murry violated his Eighth Amendment rights when they

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ignored his complaints that unnamed correctional officers were directing their “pet inmates” to

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assault and otherwise harass plaintiff because he had filed grievances. ECF No. 9 at 4-10.
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However, at the time plaintiff filed the second amended complaint, he was housed at CSP-SAC

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and the named defendants were all employed at HDSP. ECF No. 9 at 1-3. Additionally, all the

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alleged conduct took place well before the filing of the second amended complaint. Id.

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Therefore, at the time plaintiff filed the complaint, he was no longer in imminent danger of

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physical injury as a result of defendants’ conduct.

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Leave to amend should be granted if it appears possible that the defects in the complaint

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could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se

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litigant must be given leave to amend his or her complaint, and some notice of its deficiencies,

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unless it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after

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careful consideration, it is clear that a complaint cannot be cured by amendment, the court may

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dismiss without leave to amend. Cato, 70 F.3d at 1105-06.

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The court declines to give plaintiff another opportunity to amend the complaint to show

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that he is under imminent danger of serious physical injury. Each time plaintiff has amended the

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complaint he has changed both the defendants and claims rather than amending the already

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existing claims. Moreover, even if plaintiff were to attempt to amend the complaint to revive the

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claims in the original complaint, he would no longer be able to show imminent danger because

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the allegations that made up the original complaint involved a risk of harm at a prison where

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plaintiff is no longer housed. Accordingly, the court finds that amendment would be futile and

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“[a] district court may deny leave to amend when amendment would be futile.” Hartmann v. Cal.

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Dep’t of Corr & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (citation omitted).

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III.

Motion to Proceed In Forma Pauperis

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This court previously found that plaintiff has three strikes under § 1915(g) and may not

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proceed in forma pauperis unless he is under imminent danger of serious physical injury. ECF

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No. 8. As set forth above, the second amended complaint does not contain facts showing that

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plaintiff is in imminent danger and leave to amend would be futile. The undersigned will

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therefore recommend that the motion to proceed in forma pauperis be denied and plaintiff be
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required to pay the filing fee in full or have the complaint dismissed.
IV.

Plain Language Summary of this Order for a Pro Se Litigant
You have three strikes under § 1915(g) and cannot be granted in forma pauperis status

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unless you show the court that you were in imminent danger of serious physical injury at the time

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you filed the complaint. Because your claims are about things that happened in the past at a

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prison where you are no longer housed, you cannot show imminent danger. It is therefore being

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recommended that your motion to proceed in forma pauperis be denied and that you be required

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to pay the entire filing fee in full before you can go forward with your complaint.

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Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be denied because he has

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accrued three strikes under 28 U.S.C. § 1915(g) and has not demonstrated that he is under

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imminent danger of serious physical injury.

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2. Plaintiff be given thirty days to pay the entire $400.00 in required fees or face
dismissal of the case.
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 twenty-one 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: October 12, 2017

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