Brown v. Sagireddy

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/13/2017 ORDERING Clerk of Court to randomly assign a US District Judge to this action and RECOMMENDING Plaintiff be ordered to pay the entire $400 in required fees within 30 days or face dismissal of the case. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEXTER BROWN,
Plaintiff,

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v.

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No. 2:17-cv-2041 AC P

ORDER AND FINDINGS AND
RECOMMENDATIONS

PURUSHOTTAMA SAGIREDDY,
Defendant.

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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.
I.

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. However, as explained

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below, plaintiff will not be given the opportunity to submit an application to proceed in forma

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pauperis because he has accrued three strikes under 28 U.S.C. § 1915(g) and he has not shown

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that he is under imminent danger of serious physical injury. Instead, the court will recommend

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that plaintiff be required to pay the $400.00 in required fees or suffer dismissal of the complaint.

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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 only when, after careful evaluation of the order dismissing an action, and

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other relevant information, the district court determines that the action was dismissed because it

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

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Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds

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that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’

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such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such

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dismissal as denial of the prisoner’s application to file the action without prepayment of the full

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filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original).

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Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint

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on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff

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then fails to file an amended complaint” regardless of whether the case was dismissed with or

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without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017).
Inspection of other cases filed by plaintiff in this court has led to the identification of at

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least five cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the

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following lawsuits filed by plaintiff:1

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1. Brown v. Brown, 2:11-cv-3053 KJM KJN (complaint dismissed with leave to amend for

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failure to state a claim, case dismissed on December 11, 2012, after plaintiff failed to file

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“[A] court may take judicial notice of its own records in other cases.” United States v. Wilson,
631 F.2d 118, 119 (9th Cir. 1980) (citing Fed. R. Evid. 201(b)(2)).
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an amended complaint);

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2. Brown v. Hume, 2:11-cv-3441 GEB EFB (complaint dismissed with leave to amend for

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failure to state a claim, case dismissed on August 7, 2012, for failure to state a claim and

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failure to file an amended complaint);
3. Brown v. Mueller, 2:12-cv-2321 KJM DAD (dismissed on September 24, 2013, as

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frivolous and for failure to state a claim);

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4. Brown v. Gastello, 2:15-cv-1156 MCE EFB (complaint dismissed with leave to amend for

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failure to state a claim, case dismissed on March 20, 2017, for failure to state a claim and

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failure to file an amended complaint);

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5. Brown v. Miller, 2:15-cv-1687 GEB CMK (dismissed on September 21, 2016, for failure

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to state a claim).

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All of the preceding cases were dismissed well in advance of the September 27, 2017

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filing2 of the instant action and none of the strikes have been overturned. Therefore, this court

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finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent

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danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must

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have alleged facts that demonstrate that he was “under imminent danger of serious physical

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injury” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007) (“[I]t 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 to § 1915(g).”); see also, Abdul-Akbar v. McKelvie,

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

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1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883,

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885 (5th Cir. 1998).

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The complaint alleges that in October 2013, defendant Sagireddy reduced the frequency of

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plaintiff’s hemodialysis treatment knowing it would cause him harm. ECF No. 1 at 3. Since the

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alleged conduct took place nearly four years prior to the filing of the complaint, plaintiff is unable

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to demonstrate that he was in imminent danger at the time he filed the complaint. The

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Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox
rule. Houston v. Lack, 487 U.S. 266, 276 (1988).
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undersigned will therefore recommend that plaintiff be required to pay the filing fee in full or

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have the complaint dismissed.

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II.

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 almost four years

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ago, you cannot show imminent danger. It is therefore being recommended 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 ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
IT IS FURTHER RECOMMENDED that plaintiff be ordered to pay the entire $400.00 in
required fees within thirty days 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 13, 2017

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