Duncan v. Ramirez et al
Filing
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ORDER GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS; VACATING DOCKET NO. 4; GRANTING DEFENDANTS' MOTION TO STAY DISCOVERY; GRANTING PLAINTIFF'S MOTION TO AMEND; DIRECTING PLAINTIFF TO PAY FILING FEE by Judge William Alsup granting 10 Motion to Dismiss ; granting 13 Motion for Leave to File; granting 14 Motion to Stay. (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 7/3/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DARRYL W. DUNCAN,
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No. C 12-6251 WHA (PR)
Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION TO REVOKE PLAINTIFF’S
IN FORMA PAUPERIS STATUS;
VACATING DOCKET NO. 4;
GRANTING DEFENDANTS’ MOTION
TO STAY DISCOVERY; GRANTING
PLAINTIFF’S MOTION TO AMEND;
DIRECTING PLAINTIFF TO PAY
FILING FEE
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For the Northern District of California
United States District Court
v.
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OFFICER SUSAN RAMIREZ;
OFFICER BRENDMOEN,
Defendants.
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(Docket Nos. 10, 13, 14)
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INTRODUCTION
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Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), filed this pro se civil rights
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action pursuant to 42 U.S.C. 1983. He was granted leave to proceed in forma pauperis.
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Following a review of the complaint under 28 U.S.C. 1915(a), service was ordered and
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dispositive motions were scheduled. Defendants, Officer Susan Ramirez and Officer
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Brendmoen, have filed a motion to dismiss and to revoke plaintiff’s in forma pauperis status
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pursuant to 28 U.S.C. 1915(g). Plaintiff has filed an opposition and a motion to amend his
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complaint, and defendants have filed a reply brief. For the reasons discussed below, the motion
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to revoke in forma pauperis status and to amend the complaint are GRANTED. Plaintiff is
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granted 14 days in which to pay the filing fee or the case will be dismissed without prejudice.
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Defendants’ motion to stay discovery is also GRANTED.
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ANALYSIS
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Plaintiff’s complaint is based on his allegation that, in December 2010, he chewed on a
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small piece of glass that was in the breakfast food served by defendants. While defendants
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agreed to document the incident, they did not provide him another breakfast or necessary
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medical care. Plaintiff does not allege what injury, if any, he suffered from the incident.
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Defendants argue that plaintiff’s in forma pauperis status should be revoked and the case
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should be dismissed because plaintiff has three prior dismissals that qualify as “strikes” under
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28 U.S.C. 1915(g). A prisoner may not bring a civil action in forma pauperis "if the prisoner
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has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
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action or appeal in a court of the United States that was dismissed on the grounds that it is
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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
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prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). For
purposes of Section 1915(g), the phrase "fails to state a claim on which relief may be granted"
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For the Northern District of California
United States District Court
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parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same
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interpretation, the word "frivolous" refers to a case that is "'of little weight or importance:
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having no basis in law or fact,'" and the word "malicious" refers to a case "filed with the
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'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)
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(citation omitted). Defendants bear the burden of establishing that Plaintiff has three or more
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qualifying dismissals under Section 1915(g) (or “strikes”), which requires the submission of
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evidence sufficient to demonstrate at least three prior qualifying dismissals. Id. at 1120.
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Defendants request judicial notice of court records from three prior cases that plaintiff
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brought in federal court: (1) Duncan v. Charney, et al., No. 2:12-cv-00475-UA-SH (C.D. Cal.
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Jan. 19, 2012); (2) Duncan v. Porras, et al., No. 2:12-cv-02472-UA-SH (C.D. Cal. Mar. 22,
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2012); and (3) Duncan v. Charney, et al., No. 2:12-cv-04053-UA-SH (C.D. Cal. May 9, 2012).
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The request for judicial notice of these court records is GRANTED.
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The court records show that the district court’s dismissals of the first and third cases was
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based upon Plaintiff’s failure to state a cognizable claim for relief. As such, these dismissals
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clearly qualify as “strikes.” See 28 U.S.C. § 1915(g); Andrews, 398 F.3d at 1121. The second
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case was dismissed under Heck v. Humphrey, 512 U.S. 477 (1994), because it asserted claims
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that, if proven true, would call into the question the validity of plaintiff’s state court conviction.
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When a case is dismissed under Heck, the complaint “fails to state a claim upon which relief
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can be granted;” as such, the dismissal is a “strike” under Section 1915(g). See Smith v.
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Veterans Admin., 636 F.3d 1306 (10th Cir. 2011); Rivera v. Allin, 144 F.3d 719, 730-31 (11th
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Cir. 1998); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996); Schafer v. Moore, 46 F.3d 43,
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45 (8th Cir. 1995). Consequently, plaintiff has suffered three “strikes” under Section 1915(g) .
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Moreover, plaintiff does not fall under the exception to Section 1915(g) for “imminent danger”
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because the incident alleged in the complaint, while dangerous, was a discrete incident that
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occurred and ended approximately two years before the complaint was filed. As such, it was no
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longer “imminent” when this case was filed. See Andrews v. Cervantes, 493 F.3d 1047, 1053,
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1056-57 (9th Cir. 2007) (the danger must exist at the time the complaint is filed in order for the
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For the Northern District of California
United States District Court
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“imminent-danger” exception to apply).
Plaintiff argues that the dismissals cannot count as “strikes” because he did not know
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about Section 1915(g) when he filed those cases. There is no exception to Section 1915(g)
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based on ignorance of the statute, however. Plaintiff also argues that the dismissal in Duncan v.
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Porras, et al., No. 2:12-cv-02472-UA-SH (C.D. Cal. Mar. 22, 2012), is not a “strike” because
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he will be able to bring his claim if his criminal conviction is overturned. While Heck
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dismissals do not bar claims from being pursued once the plaintiff’s criminal conviction is
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overturned or otherwise invalidated, it is wholly speculative that plaintiff’s conviction will ever
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be invalidated. More importantly, based on the authority and reasoning discussed above,
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dismissals under Heck count as “strikes” for purposes of Section 1915(g).
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Plaintiff also seeks leave to amend the complaint to allege that the incident in the
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complaint placed him under “imminent danger.” He may amend the complaint to make this
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allegation. See Fed. R. Civ. P. 15(a). However, simply alleging “imminent danger” does not
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mean that he is under “imminent danger” within the meaning of Section 1915(g). As explained
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above, the “imminent danger” exception applies to an ongoing danger as of the time the
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complaint is filed, which was not the case with the incident alleged in the complaint, even as
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amended.
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Accordingly, plaintiff is barred from proceeding in forma pauperis under Section
1915(g). It is noted that this does not mean that plaintiff cannot pursue his claims. He may do
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so if he pays the filing fee. He will be allowed an opportunity to pay the filing fee. If he does
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not pay the filing fee, then this case will be dismissed without prejudice to plaintiff filing his
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claims in a future case in which he does pay the filing fee.
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CONCLUSION
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For the foregoing reasons,
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Defendants’ motion to revoke plaintiff’s in forma pauperis status is GRANTED.
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Pursuant to 28 U.S.C. 1915(g), the order granting leave to proceed in forma pauperis (dkt. 4) is
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VACATED. Within 14 days of the date this order is filed, plaintiff shall pay the full filing fee of
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$400 00. If he does not, this case will be dismissed without prejudice.
Plaintiff’s motion for leave to amend the complaint is GRANTED. Defendants’ motion
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For the Northern District of California
United States District Court
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to stay discovery is GRANTED. The stay will be lifted if and when plaintiff pays the filing fee.
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IT IS SO ORDERED.
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Dated: July
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3 , 2013.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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