Williams v. Sharp

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/21/16 ORDERING defendants' request for judicial notice 10 is granted. Defendant's motion to reconsider 10 is granted. The clerk of the court is directed to assign a district judge to this case. U.S. District Judge Garland E. Burrell randomly assigned to this case. Also, RECOMMENDING that defendant's motion to revoke plaintiff's in forma pauperis status 10 be granted; and plaintiff be ordered to pay the $400.00 filing fee within 21 days. MOTION 10 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE WILLIAMS,

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No. 2:15-cv-2542 KJN P

Plaintiff,

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v.

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SHARP,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendant.

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Plaintiff is a state prisoner, proceeding without counsel, in a civil action. He was granted

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on January 19, 2016. This

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

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On May 10, 2016, defendant filed a motion to reconsider the order granting plaintiff leave

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to proceed in forma pauperis, and to revoke plaintiff’s in forma pauperis status. Plaintiff filed an

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opposition, and defendant filed a reply. As explained below, defendant’s motion should be

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granted.

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I. Legal Standards

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Title 28 U.S.C. § 1915(g) is part of the Prison Litigation Reform Act (“PLRA”). The

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PLRA was intended to eliminate frivolous lawsuits, and its main purpose was to address the

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overwhelming number of prisoner lawsuits. Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014).

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Title 28 U.S.C. § 1915(g) reads:

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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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28 U.S.C. § 1915(g). As the Supreme Court stated, this “three strikes rule” was part of “a variety

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of reforms designed to filter out the bad claims filed by prisoners and facilitate consideration of

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the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015) (quoting Jones v. Block, 549

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U.S. 199, 204 (2007)). If a prisoner has “three strikes” under § 1915(g), the prisoner is barred

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from proceeding in forma pauperis unless he meets the exception for imminent danger of serious

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physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). The Ninth

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Circuit has held that the complaint of a “three-strikes” prisoner must plausibly allege that the

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prisoner was faced with imminent danger of serious physical injury at the time his complaint was

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filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2014); Cervantes, 493 F.3d at

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1055.

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In forma pauperis status may be acquired and lost during the course of litigation.

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Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by

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Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute makes clear

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that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the

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prisoner has brought three frivolous actions or appeals (or any combination thereof totaling

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three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). Title 28 U.S.C. § 1915(g)

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should be used to deny a prisoner’s in forma pauperis status only upon a determination that each

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action reviewed as a potential strike is carefully evaluated to determine that it was dismissed as

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frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th

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Cir. 2005). Defendants have the burden to “produce documentary evidence that allows the

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district court to conclude that the plaintiff has filed at least three prior actions . . . dismissed

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because they were ‘frivolous, malicious or fail[ed] to state a claim.’” Id. at 1120 (quoting

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§ 1915(g)). To determine whether a dismissal qualifies as a strike, a “reviewing court looks to the
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dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109

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(9th Cir. 2013) (citing King, 398 F.3d at 1121), cert. denied, 135 S. Ct. 57 (2014).1
Once defendants meet their initial burden, it is plaintiff’s burden to explain why a prior

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dismissal should not count as a strike. King, 398 F.3d at 1120. If the plaintiff fails to meet that

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burden, plaintiff’s in forma pauperis status should be revoked under 28 U.S.C. § 1915(g). King,

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398 F.3d at 1120.

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II. Plaintiff’s Prior Actions

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Review of court records reveals that, prior to December 9, 2015, the date the instant action
was filed, on three occasions lawsuits filed by the plaintiff have been dismissed on screening as
barred by the statute of limitations:

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1. Williams v. Aparicio, Case No. 2:14-cv-08640 (C.D. Cal. February 5, 2015). (ECF
No. 10-2 at 16; see also ECF No. 10-2 at 10-15 (report and recommendation).).

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2. Williams v. Kerkfoot, Case No. 2:14-cv-07583 (C.D. Cal. May 15, 2015) (ECF No.
10-2 at 38; see also ECF No. 10-2 at 26-37 (report and recommendation).)

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3. Williams v. Young, Case No. 2:14-cv-8037 (C.D. Cal. May 19, 2015) (ECF No. 10-2
at 49-55 (Memorandum and Order Dismissing Action as Untimely).
Here, the first issue is whether the dismissals of plaintiff’s prior three actions are properly

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characterized as “strikes” under 28 U.S.C. § 1915(g). In Belanus v. Clark, 796 F.3d 1021 (9th

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Cir. 2015), the United States Court of Appeals for the Ninth Circuit affirmed a district court

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decision dismissing a complaint on screening as barred by the statute of limitations and holding

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that the dismissal “constituted a ‘strike’ against [the plaintiff] pursuant to 28 U.S.C. § 1915(g).”

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Belanus, 796 F.3d at 1023. The issues before the panel in Belanus were (1) whether the plaintiff

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in that case could “assert a cognizable claim for equitable tolling of the statute of limitations,” id.,

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and (2) whether the dismissal could count as a strike where the plaintiff had paid the filing fee for

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the lawsuit. Id. at 1027. Two members of the panel held the plaintiff could not demonstrate

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entitlement to equitable tolling and that a fee-paid complaint could count as a “strike” under 28

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Plaintiff’s argument that certain dismissals cannot count as strikes because the court did not
expressly “deem” the dismissal to be a strike is unavailing in light of Knapp and King.
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U.S.C. § 1915(g).2 The majority held that the district court had “properly considered Belanus’

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complaint and summarily determined that he could not state a cause of action” because the action

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was time-barred and the prisoner could not plead entitlement to equitable tolling. Id. at 1030.

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The panel also affirmed the “decision to count the dismissal as a strike against Belanus.” Id.

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This court is bound by Belanus. While the Belanus panel did not analyze whether

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dismissal on statute of limitations grounds qualifies as a dismissal for failure to state a claim

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within the meaning of 28 U.S.C. § 1915(g), its holding requires this court to find that a dismissal

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on such grounds is subject to § 1915(g). In accordance with Belanus, this court is required to

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conclude that plaintiff’s prior three cases, set forth above, constitute “strikes” within the meaning

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of 28 U.S.C. § 1915(g).

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Second, plaintiff argues that these three prior dismissals cannot serve as strikes under

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§ 1915(g) because he is pursuing appeals and relief in the Ninth Circuit, and has not exhausted or

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waived his appellate rights in each case. However, as argued by defendant, the Supreme Court

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held that “a prior dismissal . . . counts as a strike even if the dismissal is the subject of an appeal.”

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Coleman, 135 S. Ct. at 1763. Therefore, plaintiff’s argument is unavailing.

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III. Imminent Danger

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Because plaintiff has filed three cases that constitute strikes under § 1915(g), he is

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precluded from proceeding in forma pauperis in this action unless he can demonstrate he was

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“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he availability of

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the [imminent danger] exception turns on the conditions a prisoner faced at the time the complaint

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was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007). In his opposition, plaintiff relies on the allegations in his original complaint to argue that

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he was receiving improper medical care at the time he filed his complaint. Plaintiff claims that

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his repeated complaints of pain, as well as the threatening statements made by defendant, both

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The dissent joined parts of the opinion but believed that plaintiff should have been given an
opportunity to amend his complaint to plead entitlement to equitable tolling, and that the district
court’s characterization of the dismissal as a strike was “unnecessary” and had no “binding effect
upon [plaintiff] or upon any future court,” and there was no “case or controversy” as to that issue.
Id. at 1031-32.
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meet the imminent danger of serious physical injury exception.
The court reviewed the complaint, and plaintiff does not allege facts demonstrating an

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imminent danger of serious physical injury. (ECF No. 1, passim.) Rather, plaintiff claims that on

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August 28, 2015, defendant Sharp used excessive force by requiring plaintiff to submit to

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handcuffs behind his back, rather than waist chains, and forced plaintiff to carry his heavy work

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product in a plastic bag to the law library. Plaintiff states that he informed defendant that he had

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an injured shoulder and was unable to carry the legal papers behind his back. Plaintiff

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complained about the tight handcuffs during the escort, and claims that defendant then pushed

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plaintiff against the wall, asking him if he wanted to go back, and then grabbed his arm leaving

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bruises. Plaintiff claims that he asked for medical assistance upon arrival, but defendant refused.

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Subsequently, another staff member took plaintiff to medical, where plaintiff explained that he

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has a chronic pain issue on his left neck and shoulder, but the pain was made worse by

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defendant’s actions. The medical chart documented the weight of the plastic bag containing

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plaintiff’s legal papers to be 5.6 pounds. (ECF No. 1 at 6-7.) Plaintiff was provided an ice pack

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and “instructed to take his pain med.” (ECF No. 1 at 6.) Plaintiff does not identify the pain

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medication, and he does not allege that he continues to suffer pain for which he is not receiving

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treatment. The fact that the medical professional referred to plaintiff’s pain medication -- “his

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pain med” -- suggests that plaintiff had a prescription for pain medication at that time.

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Although plaintiff alleges that defendant verbally threatened plaintiff, his factual

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allegations show plaintiff complained about an isolated incident, and do not support plaintiff’s

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statements in his opposition that he “was still receiving improper care,” or that he “was suffering

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up until filing [the] complaint and after.” (EC F No. 12 at 2.) Thus, plaintiff fails to demonstrate

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that he was at risk of an imminent danger of serious physical injury at the time he filed his

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complaint. Andrews, 493 F.3d at 1058, n.11.

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IV. Conclusion

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Because plaintiff has sustained three strikes under 28 U.S.C. § 1915(g), and failed to

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allege facts suggesting he was in imminent danger of serious physical injury at the time he filed

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his complaint, defendants’ motion to revoke plaintiff’s in forma pauperis status should be granted,
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and plaintiff should be required to submit the $400.00 filing fee3 in order to proceed with this

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action. Plaintiff is cautioned that failure to pay the filing fee will result in the dismissal of this

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action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ request for judicial notice (ECF No. 10) is granted;

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2. Defendant’s motion to reconsider (ECF No. 10) is granted;

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3. The Clerk of the Court is directed to assign a district judge to this case; and

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IT IS RECOMMENDED that:

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1. Defendant’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 10) be

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granted; and

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2. Plaintiff be ordered to pay the $400.00 filing fee within twenty-one days.

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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 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.” Plaintiff is advised that

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

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

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Dated: June 21, 2016

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The $400.00 filing fee may be reduced by the amount that has been paid pursuant to the court’s
January 19, 2016 order directing deductions from plaintiff’s prison trust account. (ECF No. 5.)
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