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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER BROWN, Plaintiff, 12 v. 13 14 No. 2:17-cv-2041 AC P ORDER AND FINDINGS AND RECOMMENDATIONS PURUSHOTTAMA SAGIREDDY, Defendant. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 18 19 20 U.S.C. § 1983. I. Three Strikes Analysis Plaintiff has not yet submitted an application to proceed in forma pauperis in this case or 21 paid the required filing fee of $350.00 plus the $50.00 administrative fee. However, as explained 22 below, plaintiff will not be given the opportunity to submit an application to proceed in forma 23 pauperis because he has accrued three strikes under 28 U.S.C. § 1915(g) and he has not shown 24 that he is under imminent danger of serious physical injury. Instead, the court will recommend 25 that plaintiff be required to pay the $400.00 in required fees or suffer dismissal of the complaint. 26 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States 27 to authorize the commencement and prosecution of any suit without prepayment of fees by a 28 person who submits an affidavit indicating that the person is unable to pay such fees. However, 1 1 [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. 2 3 4 5 6 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 7 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 8 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 9 169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in 10 forma pauperis] status only when, after careful evaluation of the order dismissing an action, and 11 other relevant information, the district court determines that the action was dismissed because it 12 was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th 13 Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds 14 that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ 15 such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such 16 dismissal as denial of the prisoner’s application to file the action without prepayment of the full 17 filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). 18 Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint 19 on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff 20 then fails to file an amended complaint” regardless of whether the case was dismissed with or 21 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 22 23 least five cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the 24 following lawsuits filed by plaintiff:1 25 1. Brown v. Brown, 2:11-cv-3053 KJM KJN (complaint dismissed with leave to amend for 26 failure to state a claim, case dismissed on December 11, 2012, after plaintiff failed to file 27 28 1 “[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)). 2 1 an amended complaint); 2 2. Brown v. Hume, 2:11-cv-3441 GEB EFB (complaint dismissed with leave to amend for 3 failure to state a claim, case dismissed on August 7, 2012, for failure to state a claim and 4 failure to file an amended complaint); 3. Brown v. Mueller, 2:12-cv-2321 KJM DAD (dismissed on September 24, 2013, as 5 6 frivolous and for failure to state a claim); 7 4. Brown v. Gastello, 2:15-cv-1156 MCE EFB (complaint dismissed with leave to amend for 8 failure to state a claim, case dismissed on March 20, 2017, for failure to state a claim and 9 failure to file an amended complaint); 10 5. Brown v. Miller, 2:15-cv-1687 GEB CMK (dismissed on September 21, 2016, for failure 11 to state a claim). 12 All of the preceding cases were dismissed well in advance of the September 27, 2017 13 filing2 of the instant action and none of the strikes have been overturned. Therefore, this court 14 finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent 15 danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must 16 have alleged facts that demonstrate that he was “under imminent danger of serious physical 17 injury” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 18 2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for 19 purposes of the ‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie, 20 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 21 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 22 885 (5th Cir. 1998). 23 The complaint alleges that in October 2013, defendant Sagireddy reduced the frequency of 24 plaintiff’s hemodialysis treatment knowing it would cause him harm. ECF No. 1 at 3. Since the 25 alleged conduct took place nearly four years prior to the filing of the complaint, plaintiff is unable 26 to demonstrate that he was in imminent danger at the time he filed the complaint. The 27 28 2 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). 3 1 undersigned will therefore recommend that plaintiff be required to pay the filing fee in full or 2 have the complaint dismissed. 3 4 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 5 unless you show the court that you were in imminent danger of serious physical injury at the time 6 you filed the complaint. Because your claims are about things that happened almost four years 7 ago, you cannot show imminent danger. It is therefore being recommended that you be required 8 to pay the entire filing fee in full before you can go forward with your complaint. 9 10 11 12 13 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 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 15 after being served with these findings and recommendations, plaintiff may file written objections 16 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 19 (9th Cir. 1991). 20 DATED: October 13, 2017 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?