Rodgers v. Munks et al
Filing
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ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER DISMISSING CASE. Signed by Judge Hon. Lucy H. Koh on 2/24/2016. (sms, COURT STAFF) (Filed on 2/25/2016)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RUSSELL DWAYNE RODGERS,
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Plaintiff,
v.
GREG MUNKS, et al.,
Defendants.
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No. C 15-4585 LHK (PR)
ORDER DENYING MOTION
FOR LEAVE TO PROCEED IN
FORMA PAUPERIS; ORDER
OF DISMISSAL
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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983 seeking damages for alleged civil rights violations. Plaintiff also filed a motion
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for leave to proceed in forma pauperis (“IFP”). On January 7, 2016, the court issued an order to
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plaintiff to show cause why plaintiff’s motion to proceed IFP should not be denied, and the case
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dismissed, pursuant to 28 U.S.C. § 1915(g). The court also notified plaintiff that, alternatively,
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he could pay the $400.00 to avoid dismissal. Plaintiff has not filed a response. For the reasons
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stated below, the court DENIES plaintiff’s motion for leave to proceed IFP, and DISMISSES
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this case without prejudice.
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DISCUSSION
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The Prison Litigation Reform Act of 1995 was enacted, and became effective, on April
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26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. § 1915 “if
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Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal
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the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
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brought an action or appeal in a court of the United States that was dismissed on the grounds that
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it is 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).
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For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails
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to state a claim on which relief may be granted” parallels the language of Federal Rule of Civil
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Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that
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is “of little weight or importance: having no basis in law or fact,” and the word “malicious”
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refers to a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d
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1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories
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can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action under
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section 1915(g) should only occur when, “after careful evaluation of the order dismissing an
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[earlier] action, and other relevant information, the district court determines that the action was
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dismissed because it was frivolous, malicious or failed to state a claim.” Id.
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The court previously notified plaintiff that plaintiff has had at least three prior prisoner
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actions that were dismissed on the ground that they were frivolous, malicious, or failed to state a
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claim upon which relief may be granted. The following federal district court dismissals may be
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counted as dismissals for purposes of section 1915(g): (1) Rodgers v. Munk, No. 12-5620 CRB
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(pr) (N.D. Cal. dismissed April 25, 2013) (dismissed with leave to amend for failure to state a
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claim, and ultimately dismissed without filing an amended complaint); (2) Rodgers v. County of
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San Mateo, No. 10-1354 JW (pr) (N.D. Cal. dismissed July 22, 2010) (dismissed for failure to
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state a claim); and (3) Rodgers v. Griffith, No. 07-5597 SBA (pr) (N.D. Cal. dismissed Dec. 10,
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2009) (same). Plaintiff has not objected to, or otherwise refuted, that the above-referenced
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dismissals are “strikes” for purposes of section 1915(g).
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Despite having had three strikes pursuant to section 1915(g), plaintiff may still be able to
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proceed IFP if he can show that he is in imminent danger of serious physical injury. Plaintiff has
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the burden of proving that he satisfies this exception to section 1915(g) by demonstrating that he
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is in imminent danger of serious physical injury. The plain language of the imminent danger
Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal
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clause in section 1915(g) indicates that “imminent danger” is to be assessed at the time of the
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filing of the complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007)
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(“Andrews II”). The conditions that existed at some earlier or later time are not relevant. See id.
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and n.5. The court “should not make an overly detailed inquiry into whether the allegations
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qualify for the exception.” Id. at 1055. It is sufficient if the complaint “makes a plausible
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allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of
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filing.” Id.; see, e.g., id. at 1055 (allegation that plaintiff was at risk of contracting HIV or
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hepatitis C was sufficient to bring his complaint within the imminent danger exception); cf.
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Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (no ongoing danger where plaintiff
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had been placed in administrative segregation following physical assaults by fellow inmates and
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before he filed his complaint). In this circuit, “requiring a prisoner to allege[] an ongoing danger
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– the standard adopted by the Eighth Circuit – is the most sensible way to interpret the
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imminency requirement.” Andrews II, 493 F.3d at 1056 (internal quotation marks omitted).
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Here, plaintiff has not suggested that he was under imminent danger of serious physical
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injury. Thus, he has not satisfied his burden to show that he is entitled to the exception to
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section 1915(g). In addition, the court has reviewed plaintiff’s complaint, and nothing in the
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complaint suggests that plaintiff faced any “ongoing danger” of serious physical injury sufficient
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to “meet the imminence prong of the three-strikes exception” at the time plaintiff filed his
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complaint. Id. at 1057. Accordingly, plaintiff has not shown that he is entitled to the imminent
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danger exception under section 1915(g) to avoid dismissal without prejudice.
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CONCLUSION
Plaintiff’s motion to proceed IFP is DENIED. Because plaintiff has not paid the $400.00
filing fee, this action is DISMISSED without prejudice.
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The Clerk shall terminate all pending motions and close the file.
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IT IS SO ORDERED.
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2/25/2016
DATED: 2/24/2016
LUCY H. KOH
United States District Judge
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Order Denying Motion for Leave to Proceed In Forma Pauperis; Order of Dismissal
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