Martin v. Paramo et al

Filing 14

ORDER: (1) Denying Plaintiff's 2 Motion to Proceed in Forma Pauperis as barred by 28 U.S.c. § 1915(g); (2) Denying Plaintiff's Motions Consenting, Requesting Judicial Notice and for Preliminary Injunction (ECF Nos. 4 , 10 , 13 ); and (3) Dismissing Civil Action as Frivolous. Signed by Judge Roger T. Benitez on 6/2/2016.(All non-registered users served via U.S. Mail Service)(knb)

FiLED

2

2Ilt JUN -2 PH l.; 38

3

~~~

4

a+.

5

-t'tJ

I&Uff

6

7

8
9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

10
11

12

LANCE R. MARTIN,
CDCR #E-17299,
Plaintiff,

13
14

Case No.: 3:16-cv-00545-BEN-KSC

vs.

1) DENYING PLAINTIFF'S
MOTION TO PROCEED IN FORMA
PAUPERIS AS BARRED BY
28 U.S.C. § 1915(g) [ECF No.2];

15
16
17
18

19
20

ORDER:

D. PARAMO, Warden, et aI.,
Defendants.

2) DENYING PLAINTIFF'S
MOTIONS CONSENTING,
REQUESTING JUDICIAL NOTICE
AND FOR PRELIMINARY
INJUNCTION [ECF Nos. 4,10,13];

21

AND

22

3) DISMISSING CIVIL ACTION

23

AS FRIVOLOUS PURSUANT
TO 28 U.S.C. § 1915A(b)(1)

24
25
26
27

LANCE R. MARTIN ("Plaintiff'), who was incarcerated at Richard J. Donovan
Correctional Facility ("RJD") in San Diego, California, when he brought this action pro

28
3: 16-cv-00545-BEN-KSC

l.y

1

se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No.

2

Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he

3

submitted a certified copy of his inmate trust account statement which the Court liberally

4

construes as a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C.

5

§ 1915(a). (ECF No.2.)

6

Plaintiff has also filed a motion and other documents seeking permission to

7

proceed before a magistrate judge (ECF Nos. 4, 6, 9), a request for "Judicial Notice"

8

(ECF No.1 0), and a Motion for Preliminary Injunction (ECF No. 13).

9

I.

Motion to Proceed IFP
"[A] federal litigant who is too poor to pay court fees may proceed informa

10
11

pauperis. This means that the litigant may commence a civil action without prepaying

12

fees or paying certain expenses." Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015).

13

"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cnty. Sheriff's

14

Office, 657 F.3d 890, 892 (9th Cir. 2011). "Prisoners," like Plaintiff, however, "face an

15

additional hurdle." Id. The Prison Litigation Reform Act ("PLRA") amended section

16

1915 to preclude the privilege to proceed IFP:

17

[I] f [a] prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court ofthe United
States that was dismissed on the grounds that it is frivolous, malicious, or

18
19
20
21

Plaintiff has since filed two Notices of Change of Address (ECF Nos. 7, 11), which
indicate his release from state custody, but after he "brought" this suit while he was
incarcerated at RJD. See ECF No.1; 28 U.S.C. § 1915(g); Andrews v. King, 398 F.3d
1113, 1122 (9th Cir. 2005) ("The language of § 1915(g) does not limit the type offacility
in which a plaintiff must be detained when the prior actions were filed," but it does "state[]
that a prisoner may not proceed IFP ifthe three dismissed actions were filed while [he] was
"incarcerated or detained in any facility."); see also Gibson v. City Municipality of New
York, 692 F.3d 198,201 (2d Cir. 2012) ("We have previously made clear that the relevant
time at which a person must be "a prisoner" ... is "the moment the plaintiff files his
complaint."); Harris v. City of New York, 607 F.3d 18, 22 (2d Cir. 2010) (rejecting
argument that "§ 1915(g) no longer applies once a prisoner has been released").
1

22
23
24
25

26
27
28

2

3:16-cv-OOS4S-BEN-KSC

1

2

fails to state a claim upon which relief can be granted, unless the prisoner is
under imminent danger of serious physical injury.

3

28 U.S.C. § 1915(g). "This subdivision is commonly known as the 'three strikes'

4
5

provision." Andrews v. King, 398 F.3d 1113, 1116 n.l (9th Cir. 2005).

6
7

prisoner, which were dismissed on the ground that they were frivolous, malicious,

8

prisoner has accumulated three strikes, he is prohibited by section 1915(g) from

9

pursuing any other IFP action in federal court unless he can show he is facing

"Strikes are prior cases or appeals, brought while the plaintiff was a

or fai1[ed] to state a claim." !d. at 1116 n.1 (internal quotations omitted). Once a

10

"imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The objective

11

of the PLRA is to further "the congressional goal of reducing frivolous prisoner

12

litigation in federal court." Tierney v. Kupers, 128 F.3d 1310,1312 (9th Cir.

13

1997).

14

As an initial matter, the Court has carefully reviewed Plaintiffs Complaint and has

15

ascertained that it does not contain "plausible allegations" which suggest he "faced

16

'imminent danger of serious physical injury' at the time of filing." Andrews v.

17

Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) [hereinafter Cervantes] (quoting 28

18

U.S.C. § 1915(g)). Instead, both Plaintiffs Complaint and his Motion for Preliminary

19

Injunction contain wholly incredible allegations that prison officials at RJD have used

20

and continue to use "cellular radio frequencies" and an "electronic transmitting device ..

21

. known as computer (RF) scan technology" to "collect[] [his] thought process in words

22

on a computer screen," to download them on computer hard drives, and to "program[]

23

their electronic radio frequenc[ies] ... to bum 2 ho1e[s] through [his] back upper left

24

shoulder." (ECF No.1 at 8-9; see also ECF No. 13 at 5, 12.) Plaintiff further alleges

25

Defendants' use ofthis "non-conventional force technique" has "elevated [his] body

26

temperature to a dangerous level of 115 degrees;" caused memory loss, "bruising around

27

[his] eyes," abdominal pain, facial distortion, and lower back pain; and has "interrupt[ed]

28

his cognitive ability to reason." (ECF No.1 at 9.) Such implausible allegations are
3
3:16-cv-00545-BEN-KSC

1

insufficient to support any claim of "imminent danger." See Cervantes, 493 F.3d at 1057

2

n. 11 ("Courts ... deny leave to proceed IFP when a prisoner's claims of imminent

3

danger are conclusory or ridiculous." (alteration in original) (citing another source));

4

Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (refusing to find "imminent

5

danger" based on "conclusory assertions that defendants were trying to kill [the inmate]

6

by forcing him to work in extreme weather conditions despite his blood pressure

7

condition"); see also Holz v. McFadden, No. ED CV 07-1410-DSF (PJW), 2010 WL

8

3069745, at *3 (CD. Cal. May 21,2010) ("[M]erely alleging that the government is

9

going to murder you is not enough to pass through the gateway of the imminent danger

10
11

exception to § 1915(g).").
A court "'may take notice of proceedings in other courts, both within and without

12

the federal judicial system, if those proceedings have a direct relation to matters at

13

issue.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v.

14

Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Thus, this Court takes judicial

15

notice that Plaintiff Lance R. Martin, a prisoner at RJD and identified as CDCR Inmate

16

# E-I7299 at the time he filed this action (ECF No.1), has brought, while incarcerated,

17

more than three prior civil actions and appeals which have been dismissed on the grounds

18

that they were frivolous, malicious, or failed to state a claim upon which relief may be

19

granted. See 28 U.S.C. § 1915(g).

20

They are:

21

1) Martin v. Giurbino, No. 3: 13-cv-01430-JAH-BGS (S.D. Cal. Mar. 6, 2014)

22

(Order Denying Plaintiff's Motion for Preliminary Injunction and Dismissing

23

Second Amended Complaint as Frivolous Pursuant to 28 U.S.C. §§ 1915(e)(2)

24

& 1915A) (ECF No. 19) (strike one);2

25
26
27
28

2 Plaintiff filed an appeal of this Order to the Ninth Circuit Court of Appeals. (ECF No.
21.) The Ninth Circuit agreed with the District Court's finding that the appeal was not
taken in good faith, found the appeal frivolous, and revoked Plaintiff's IFP status. (ECF
4
3:16-cv-00545·BEN·KSC

1

2) Martin v. Harrinston, No. 3: 14-cv-02914-BEN-PCL (S.D. Cal. July 13,2015)

2

(Order Sua Sponte Dismissing Second Amended Complaint for Failing to State

3

a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A) (ECF No. 22) (strike

4

twO);3

5

3) Martin v. Culinary Cook Post, No. 3: 15-cv-00472-BEN-JMA (S.D. Cal. Apr.

6

20, 2015) (Order Denying Plaintiffs Motion for Preliminary Injunction and

7

Dismissing First Amended Complaint as Frivolous Pursuant to 28 U.S.C. §§

8

1915(e)(2) & 1915A)(ECF No. 18)(strike three);4
4) Martin v. Paramo, No. 3: 15-cv-02492-BTM-PCL (S.D. Cal. Dec. 28, 2015)

9
10

(Order Denying Plaintiffs Motion to Proceed In Forma Pauperis as Barred by

11

28 U.S.C. § 1915(g) and Dismissing Complaint as Frivolous Pursuant to 28

12

U.S.C. § 1915A) (ECF No.6) (strike four);5 and

13
14
15
16

No. 26.) The appeal was later dismissed based on Plaintiffs failure to prosecute by paying
appellate filing fees. (ECF No. 27.)

17

Plaintiff also filed an appeal of this Order to the Ninth Circuit Court of Appeals. (ECF
Nos. 24, 25.) That appeal remains pending at this time. (See id.) However, this Court's
dismissal still counts as a "strike" under § 1915(g). See Coleman, 135 S. Ct. at 1765
(holding that a "prisoner who has accumulated three prior qualifying dismissals under
§ 1915(g) may not file an additional suit [IFP] while his appeal of one such dismissal is
pending.").

18
19
20
21

3

Plaintiff also filed an appeal of this Order to the Ninth Circuit Court of Appeals. (ECF
No. 26.) The Ninth Circuit agreed with the District Court's fmding that the appeal was not
taken in good faith, found the appeal frivolous, and revoked Plaintiffs IFP status. (ECF
No. 30.) The appeal was later dismissed based on Plaintiffs failure to prosecute by paying
the required appellate filing fees. (ECF No. 31.)
4

22
23
24
25
26
27
28

5 Plaintiff filed an appeal of this Order to the Ninth Circuit Court of Appeals. (ECF No.
9.) The Ninth Circuit found the appeal frivolous and denied his request to proceed IFP on
appeal. (ECF No. 13.) The appeal was later dismissed based on Plaintiffs failure to
prosecute by paying the appellate filing fees. (ECF No. 14.)
5
3:16-cv-00545-BEN-KSC

1

5) Martin v. Juarez, No. 3:15-cv-02501-CAB-NLS (S.D. Cal. Jan. 15,2016)

2

(Order Denying Plaintiff Motion to Proceed In Forma Pauperis as Barred by 28

3

U.S.C. § 1915(g), Denying Motion for Preliminary Injunction, and Dismissing

4

Civil Action as Frivolous Pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 12)

5

(strike five). 6

6

Accordingly, because Plaintiff has, while incarcerated, accumulated more than the

7

three "strikes" permitted pursuant to § 1915(g), and he fails to make a "plausible

8

allegation" that he faced "imminent danger of serious physical injury" at the time he filed

9

this action, he is not entitled to the privilege of proceeding IFP in this action. See

10

Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) "does not prevent all

11

prisoners from accessing the courts; it only precludes prisoners with a history of abusing

12

the legal system from continuing to abuse it while enjoying IFP status").

13

II.

14

Sua Sponte Screening per 28 U.S.C. § 1915A
While Plaintiff has been denied leave to commence this civil action without

15

prepayment ofthe $400 civil filing fee required by 28 U.S.C. § 1914(a), the Court also

16

elects to conduct a sua sponte review of Plaintiff s Complaint because he was

17

"incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated

18

delinquent for, violations of criminal law or the terms or conditions of parole, probation,

19

pretrial release, or diversionary program" at the time he filed this action. See 28 U.S.C.

20

§ 1915A(a), (c). Section 1915A, also enacted as part ofPLRA, requires sua sponte

21

dismissal of prisoner complaints, or any portions thereof, which are "frivolous, malicious,

22
23
Plaintiff filed a premature Notice of Appeal in this case, which was dismissed for lack of
jurisdiction by the Ninth Circuit in Appeal No. 16-55073 on April 5, 2016. (ECF Nos. 9,
18.) The mandate as to that appeal issued on May 3, 2016. (ECF No. 22.) However,
Plaintiff also filed an amended Notice of Appeal challenging the January 15, 2016 final
judgment. (ECF No. 17.) That "new appeal" has been assigned Appeal No. 16-55525 and
is still pending before the Ninth Circuit. (ECF Nos. 19-21.) Regardless of the outcome of
the new appeal, however, Judge Bencivengo's Order of Dismissal may still be counted as
a strike against Plaintiff under § 1915(g). See Coleman, 135 S. Ct. at 1765.
6

24
25
26
27
28

6

3:16-cv-00545-BEN-KSC

1

or fail[] to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b);

2

Coleman, 135 S. Ct. at 1764. "The purpose of § 1915A is to 'ensure that the targets of

3

frivolous or malicious suits need not bear the expense of responding. '" Nordstrom v.

4

Ryan, 762 F.3d 903,907 n.l (9th Cir. 2014) (internal citation omitted).

5

"[A] complaint, containing as it does both factual allegations and legal

6

conclusions, is frivolous where it lacks an arguable basis either in law or in fact. ...

7

[The] term 'frivolous,' when applied to a complaint, embraces not only the inarguable

8

legal conclusion, but also the fanciful factual allegation." Neitzke v. Williams, 490 U.S.

9

319,325 (1989). A pleading is "factual[ly] frivolous[]" under § 1915A(b)(1) if"the facts

10

alleged rise to the level of the irrational or the wholly incredible, whether or not there are

11

judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S.

12

25,33 (1992). When determining whether a complaint is frivolous, the court need not

13

accept the allegations as true, but must "pierce the veil of the complaint's factual

14

allegations," Neitzke, 490 U.S. at 327, to determine whether they are "'fanciful,'

15

'fantastic,' [or] 'delusional,''' Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 325-

16

28).

17

Here, the Court finds that Plaintiffs claims are patently frivolous. As noted above,

18

Plaintiffs Complaint contains irrational and incredible allegations that prison officials at

19

RJD used cellular radio frequencies and continuous electronic monitoring devices upon

20

him to "burn a hole through [his] back upper left shoulder," cause the separation of the

21

joints in his shoulder, and elevate his body temperature to 115 degrees. (ECF No.1 at 8-

22

9.) Plaintiff further contends Defendants used the same devices to monitor, "dissuade,"

23

and "coerce" his family members to "ostracize" him. (Id. at 10.) These allegations "rise

24

to the level of the irrational or the wholly incredible." Denton, 504 U.S. at 33.

25

Accordingly, Plaintiffs Complaint requires dismissal as frivolous and without leave to

26

amend. See Lopez v. Smith 203 F.3d 1122,1127 n.8 (9th Cir. 2000) (en banc) (noting

27

that if a claim is classified as frivolous, "there is by definition no merit to the underlying

28

action and so no reason to grant leave to amend.").
7
3:16-cv-00545-BEN-KSC

1

In.

2

Motion for Preliminary Injunction
Plaintiff also seeks emergency injunctive relief enjoining Defendants from

3

"physically torturing [him] with their electronic transmitting device." (ECF No. 13.) He

4

also requests "judicial notice" that he has been paroled but continues to be electronically

5

monitored by RJD officials and, as a result, now has "radiating pain down his left arm"

6

and an "extreme front tooth ache loosening it up now ready to fall out." (ECF No. 10.)

7

Plaintiff claims "there is a reasonable likelihood that [he] will prevail on the

8

merits," and that he faced and continues to face a "substantial threat of irreparable harm"

9

after his release on parole, including "glenohumeral joint arthritis," "deformity," weight

10

loss, psychological trauma, and "vascular damage to his aortic valve," as a result of

11

Defendants' "illegal use of non-conventional unnecessary force" and the "electronic

12

transmitting device listed in 2011 Penal Code Section 9002(d) and 9002(e)." (ECF No.

13

13 at 1,3,5, 8y
"A plaintiff seeking a preliminary injunction must establish that he is likely to

14
15

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

16

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

17

the public interest." Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7, 20 (2008).

18

Because the Court has found Plaintiffs claims frivolous, "there is by definition no merit

19
20
21
22
23
24
25
26
27
28

Section 9002 of the California Penal Code describes the duties and immunities of the
State's Sex Offender Management Board, but the statute does not provide for the type of
electronic monitoring Plaintiff describes in either his Complaint or his motion seeking
injunctive relief. See CAL. PENAL CODE § 9002(a)-(c). However, another provision of the
Penal Code does permit "the use of electronic monitoring or supervising devices" for
persons convicted "for any felony violation of a 'registerable sex offense'" as a condition
of parole. See CAL. PENAL CODE § 3004(a), (b). However, even if the Court were to
assume Plaintiff is a sex offender currently subject to electronic monitoring as a condition
of his parole, the factual allegations in both his Complaint and Motion for Preliminary
Injunction focus only on the purported physical and psychological effects of that
monitoring on his body and mind and are still "irrational" and "wholly incredible."
Denton, 504 U.S. at 33.

7

8
3:16·cv·00545·BEN·KSC

1

to [his] underlying action," Lopez, 203 F.3d at 1127 n.8, and therefore, no likelihood that

2

he can prevail on the merits. Winter, 555 U.S. at 20; Fournier v. Gomez, No. C-93-3264,

3

1993 WL 483198, at *3 (N.D. Cal. Nov. 15, 1993) (denying prisoner's motion for

4

emergency injunctive relief because "[a]s plaintiffs allegations are legally frivolous,

5

neither a probability of success on the merits nor likelihood of irreparable injury is

6

indicated").

7

For these reasons, Plaintiffs Motion for Preliminary Injunction (ECF No. 13) must

8

be denied. Plaintiffs Request for Judicial Notice is also denied. (ECF No. 10.)

9

IV.

Motion Consenting to Magistrate Judge

10

Plaintiff has also filed a motion and supplemental documents expressing his desire

11

to consent to a magistrate judge's jurisdiction in this case. (ECF Nos. 4, 6, 9.) While the

12

Federal Magistrate Act provides that ,"[ujpon the consent ofthe parties, a full-time United

13

States magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil

14

matter and order the entry of judgment in the case, when specially designated to exercise

15

such jurisdiction by the district court," 28 U.S.c. § 636(c)(1), the Defendants in this

16

matter have not yet appeared and the Court has found the case subject to immediate sua

17

sponte dismissal as frivolous pursuant to 28 U.S.C. § 1915A(b)(I). Therefore, Plaintiffs

18

Motion Consenting to Magistrate Judge (ECF No.4) is moot.

19

V.

Conclusion and Order

20

For the reasons set forth above, the Court hereby:

21

(1)

22

DENIES Plaintiffs Motion to Proceed In Forma Pauperis (ECF No.2) as

barred by 28 U.S.C. § 1915(g);

23

(2)

DENIES Plaintiffs Motion for Preliminary Injunction (ECF No. 13);

24

(3)

DENIES Plaintiffs Request for Judicial Notice (ECF No. 10);

25

(4)

DENIES Plaintiffs Motion and Supplemental Requests Consenting to

26
27
28

Magistrate Judge (ECF Nos. 4, 6, 9);
(5)

DISMISSES this civil action sua sponte as frivolous pursuant to 28 U.S.C.

§ 1915A(b)(I) and without leave to amend; and
9
3:16-cv-00545-BEN-KSC

•

••

I

1

(6)

CERTIFIES that an IFP appeal from this Order would also be frivolous and

2

therefore could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

3

Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

4

550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

5

appeal would not be frivolous).

6
7

IT IS SO ORDERED.

8
9

Dated:~"L-!<=-:\-_' 2016

10

11

United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
3: 16-cv-00545-BEN-KSC