Logan v. Gamboa

Filing 31

ORDER signed by Magistrate Judge Allison Claire on 03/31/17 ORDERING that the original 1 complaint is DISMISSED with 30 days leave to amend; amended complaints 6 , 7 , 11 , 12 , 13 , 15 , 16 , 17 26 are STRICKEN; plaintiff shall submit A pplication to Proceed IFP within 30 days; plaintiff's 2 , 18 , 19 , 20 , 25 , 28 , 30 Motions for Appointment of Counsel are DENIED; plaintiff's 8 request for PLU status is DENIED; plaintiff's 21 request to issue subpoenas is DENIED; plaintiff's 22 24 requests for transfer are DENIED; plaintiff's 27 request for discovery is DENIED; and plaintiff's 29 request for service forms is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN DAVID LOGAN, II,

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Plaintiff,
v.

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No. 2:16-cv-2020 AC P

ORDER

D.L. GAMBOA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for

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all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 5. Currently before

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the court are plaintiff’s original complaint (ECF No. 1), amended complaints (ECF Nos. 6, 7, 11,

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12, 13, 15, 16, 17, 26), motions for appointment of counsel (ECF Nos. 2, 18, 19, 20, 25, 28, 30),

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request for Priority Legal User status (ECF No. 8), request to issue subpoenas (ECF No. 21),

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requests for transfer (ECF Nos. 22, 24), request for discovery (ECF No. 27), and request for

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service forms (ECF No. 29).

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I.

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Three Strikes Analysis
Plaintiff has not yet submitted an application to proceed in forma pauperis in this case or

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paid the required filing fee of $350.00 plus the $50.00 administrative fee. Accordingly, he will be

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provided the opportunity either to submit the appropriate application in support of a request to
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proceed in forma pauperis or to submit the required fees totaling $400.00. However, if he

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submits an application to proceed in forma pauperis, it will not be granted unless he also

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demonstrates that he meets the imminent danger exception as explained below.

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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
judgement in a civil action or proceeding under this section if the
prisoner has, on 3 or more 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). The plain language of the statute makes clear that a prisoner is precluded

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from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three

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frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook,

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169 F.3d 1176, 1178 (9th Cir. 1999). Section 1915(g) should be used to deny a prisoner’s in

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forma pauperis status on upon a determination that each action reviewed (as a potential strike) is

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carefully evaluated to determine that it was dismissed as frivolous, malicious, or for failure to

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state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen a district court

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disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is frivolous,

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malicious, or fails to state a claim upon which relief may be granted,’ such a complaint is

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‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of

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the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v.

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Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original).
The court takes judicial notice1 of the national pro se “three strikes” database,2 which

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indicates that plaintiff has a three strikes order in the United States District Court for the Central

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A court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119
(9th Cir. 1980).
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A Ninth Circuit committee has directed this court to access this database for PLRA three-strikes
screening purposes.
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District of California in Logan v. La Duke, Case No. 2:10-cv-07612-UA-MLG. Upon inspection

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of the order in that case, which deems plaintiff a three strikes litigant, and several other cases filed

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by plaintiff in the Central District of California, this court has identified eight cases brought by

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plaintiff that qualify as strikes. The court takes judicial notice of the following lawsuits filed by

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plaintiff in the United States District Court for the Central District of California:

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1. Logan v. Baker, 2:01-cv-08702-UA-MLG (dismissed as legally and/or factually patently
frivolous on October 26, 2001)
2. Logan v. Sheriff Department, 2:05-cv-01900-UA-MLG (dismissed as legally and/or
factually patently frivolous on March 25, 2005)
3. Logan v. Blunk, 2:06-cv-03639-UA-MLG (dismissed as legally and/or factually patently
frivolous on June 27, 2005)
4. Logan v. Zepeda, 2:07-cv-07314-UA-MLG (dismissed as legally and/or factually patently
frivolous on November 30, 2007)
5. Logan v. Zepeda, 2:08-cv-00631-UA-MLG (dismissed as legally and/or factually patently
frivolous on April 3, 2008)
6. Logan v. County of Los Angeles, 2:08-cv-01916-UA-MLG (dismissed as legally and/or
factually patently frivolous on April 3, 2008)
7. Logan v. Marshal, 2:09-cv-01883-UA-MLG (dismissed as legally and/or factually
patently frivolous on March 27, 2009)
8. Logan v. McClain, 2:09-cv-03614-UA-MLG (dismissed as legally and/or factually

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patently frivolous on June 1, 2009).

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All of the preceding cases were dismissed well in advance of the August 21, 2016 filing of

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the instant action, and plaintiff did not appeal any of these decisions, so none of the strikes have

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been overturned. Therefore, this court finds that plaintiff is precluded from proceeding in forma

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pauperis unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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To satisfy the exception, plaintiff must have alleged facts that demonstrate that he was “under

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imminent danger of serious physical injury” at the time of filing the complaint. Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing
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of the complaint that matters for purposes of the ‘imminent danger’ exception to § 1915(g).”); see

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also Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler, 185 F.3d

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1189, 1193 (11th Cir. 1999) (holding that a prisoner’s allegation that he faced imminent danger

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sometime in the past is an insufficient basis for the exception under § 1915(g)); Ashley v.

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Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (noting that “an otherwise ineligible prisoner is only

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eligible to proceed [in forma pauperis] if he is in imminent danger at the time of filing”)

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(emphasis in original); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998) (holding that danger

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must exist “at the time the plaintiff seeks to file his complaint”) (emphasis in original).

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Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless he

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has established that he was under imminent danger of serious physical injury at the time he filed

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the complaint. Plaintiff’s claims in his original complaint against defendants Gamboa and

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Birdsong regarding denial of morphine for pain management are insufficient to meet this standard

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because plaintiff simply disagrees with the pain medication he was provided. ECF No. 1. There

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are no allegations that he has been denied all pain medication or treatment, only that he disagrees

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with the decision to discontinue morphine and other narcotic pain relievers. Id. at 3. In contrast,

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one of plaintiff’s amended complaints, filed by the Clerk of the Court on November 17, 2016,3

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may allege facts sufficient to establish imminent danger of serious physical injury, because

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plaintiff states that his Wellbutrin medication was discontinued, causing him to hear voices and

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experience paranoia. ECF No. 16 at 3.

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However, none of plaintiff’s amended complaints are in the proper form. Although

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plaintiff has filed each “amended complaint” on a complaint form, each complaint contains

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completely different allegations and defendants. It appears that he is trying to add new

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defendants and claims in a piecemeal fashion. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. Valadez-

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Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (citing Forsyth v. Humana, Inc., 114 F.3d

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The amended complaint was incorrectly docketed as a second sixth amended complaint.
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1467, 1474 (9th Cir. 1997)). In other words, each time plaintiff files an amended complaint, it

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completely replaces the previous complaint and the court only looks at the claims in the new

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complaint. It is as if the old complaints do not exist. Additionally, the claims and defendants in

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the various complaints are not all properly joined, because the claims do not involve the same

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defendants or arise out of the same transaction or occurrence. Fed. R. Civ. P. 18; Fed. R. Civ. P.

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20. A plaintiff may join multiple claims if they are all against a single defendant, Fed. R. Civ. P.

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18(a), and joinder of defendants is only permitted if “any right to relief is asserted against

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them . . . with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences; and any question of law or fact common to all defendants will arise

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in the action,” Fed. R. Civ. P. 20(a)(2) (emphasis added).

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Since the disagreement with treatment alleged in the original complaint does not state a

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claim,4 the “amended complaints” are not proper, and plaintiff might be able to allege imminent

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danger, the court will dismiss the original complaint, strike plaintiff’s various “amended

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complaints,” and allow plaintiff an opportunity to file a proper amended complaint. If plaintiff

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chooses not to file an amended complaint, this action will be dismissed. If he files an amended

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complaint but it does not allege imminent danger of serious physical injury, this action will be

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dismissed unless plaintiff pays the filing fee.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. at 371. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (difference of opinion between inmate
and medical personnel about what treatment is appropriate does not constitute deliberate
indifference).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Once plaintiff files an amended complaint, the

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original pleading no longer serves any function in the case. In an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged. Therefore, plaintiff’s amended complaint must be filed as a single document, which

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must contain all claims against all defendants. The court will not consider piecemeal, partial

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filings such as those previously submitted by plaintiff. See ECF Nos. 6, 7, 11, 12, 13, 15, 16, 17,

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II.

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Motions for Counsel
Plaintiff has filed several motions for appointment of counsel. ECF Nos. 2, 18, 19, 20, 25,

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28, 30. The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331

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(9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common

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to most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Plaintiff has failed to establish any exceptional circumstances exist. Additionally, plaintiff has

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not filed an application to proceed in forma pauperis and therefore he lacks grounds to establish

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indigence and eligibility for appointed counsel. Thus, plaintiff’s requests for counsel (ECF Nos.

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2, 18, 19, 20, 25, 28, 30) will be denied.

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III.

Request for Priority Legal User Status

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Plaintiff has filed a request for Priority Legal User (PLU) status. ECF No. 8. The court

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does not have authority to order the California Department of Corrections and Rehabilitation to
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grant plaintiff PLU status and therefore this request will be denied.

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IV.

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Request to Issue Subpoenas
Plaintiff has filed a request for the court to issue subpoenas for trial. ECF No. 21. At this

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stage, it is not clear that this case will proceed to trial and the request will be denied.

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V.

Request for Transfer

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Plaintiff has requested transfer to federal custody. ECF Nos. 22, 24. The court does not

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have authority to order plaintiff into federal custody and therefore these requests will be denied.

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VI.

Request for Discovery

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Plaintiff has requested discovery of his medical file. ECF No. 27. At this stage, it is not

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clear that this case will proceed to discovery and the request will be denied. If the case proceeds

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to discovery in the future, plaintiff will have the opportunity to request documents relevant to his

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claims in this case.

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VII.

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Request for Service Forms
Plaintiff has requested forms for completing service on defendants. ECF No. 29. The

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court has not determined that service is appropriate at this stage and the request will be denied.

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VIII.

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Conclusion
Plaintiff must file a request to proceed in forma pauperis or pay the required fees. If

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plaintiff requests to proceed in forma pauperis, he must show that he meets the imminent danger

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exception. Since plaintiff may be able to demonstrate that he was in imminent danger of serious

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physical injury, the court will grant him leave to amend the complaint. Plaintiff’s previously filed

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amended complaints will be stricken from the record and the original complaint is dismissed with

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leave to amend.

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If plaintiff chooses to amend his complaint, the first amended complaint must include all

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of the claims plaintiff wants to make because the court will not look at the claims or information

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in any of his other complaints. Any claims not in the first amended complaint will not be

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considered. In order to state a claim for deliberate indifference, plaintiff must state facts that

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show that defendants knew about his serious medical needs and ignored the risk to his health and

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safety.
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Plaintiff’s motions for counsel, request for PLU status, request to issue subpoenas, request

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for transfer to a federal facility, request for discovery, and request for service forms are all denied.

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Accordingly, IT IS HEREBY ORDERED that:

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The original complaint (ECF No. 1) is dismissed with leave to amend;

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The Clerk of the Court is directed to strike plaintiff’s amended complaints (ECF

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Nos. 6, 7, 11, 12, 13, 15, 16, 17, 26) from the record;

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Within thirty days from the date of this order, plaintiff shall submit an amended

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complaint. Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights

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Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended

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complaint must also bear the docket number assigned to this case and must be labeled “First

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Amended Complaint.” Failure to file an amended complaint in accordance with this order will

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result in dismissal of this action;

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The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

form used in this district;

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Plaintiff shall submit, within thirty days from the date of this order, an application

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to proceed in forma pauperis on the form provided by the Clerk of Court or the appropriate filing

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fee. Plaintiff’s failure to comply with this order will result in a recommendation that this action

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be dismissed;

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Forma Pauperis By a Prisoner;

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The Clerk of the Court is directed to send plaintiff a new Application to Proceed In

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Plaintiff’s motions for appointment of counsel (ECF Nos. 2, 18, 19, 20, 25, 28, 30)

are denied;

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Plaintiff’s request for PLU status (ECF No. 8) is denied;

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Plaintiff’s request to issue subpoenas (ECF No. 21) is denied;

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Plaintiff’s requests for transfer (ECF No. 22, 24) are denied;

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Plaintiff’s request for discovery (ECF No. 27) is denied; and

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Plaintiff’s request for service forms (ECF No. 29) is denied.

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DATED: March 31, 2017

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