Burton v. Scharr et al

Filing 9

ORDER: (1) Denying Motions to Proceed in Forma Pauperis and to Appoint Counsel as Barred By 28 U.S.C. § 1915(g) (ECF Nos. 2 , 6 ) and (2) Dismissing Civil Action without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). Signed by Judge Barry Ted Moskowitz on 11/28/2017. (All non-registered users served via U.S. Mail Service)(mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HARRISON L. BURTON,
CDCR #J-58007,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-02012-BTM-JMA

vs.

1) DENYING MOTIONS TO
PROCEED IN FORMA PAUPERIS
AND TO APPOINT COUNSEL AS
BARRED BY 28 U.S.C. § 1915(g)
[ECF Nos. 2, 6]

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Sgt. SCHARR, et al.,
Defendants.

AND

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2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)

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HARRISON L. BURTON (“Plaintiff”), a prisoner incarcerated at Richard J.

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Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se,

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has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).

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Plaintiff claims RJD Sergeant Scharr and RJD Correctional Officers Bermudez and

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Bjork violated his Eighth Amendment rights on December 1, 2016 by authorizing a cell

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move from the lower to upper tier in contravention of a doctor’s order or “chrono”
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designating Plaintiff as mobility impaired. See Compl., ECF No. 1 at 5-6. Plaintiff was

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re-housed on the upper tier, but fell down the stairs the following day, and was

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transported to an outside hospital for treatment. Id. at 7-8. He seeks declaratory and

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injunctive relief preventing his movement to the top tier as well as $350,001 in nominal,

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general and punitive damages. Id. at 11.

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2), together with a Motion to Appoint Counsel pursuant to 28

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U.S.C. § 1915(e)(1) (ECF No. 6).

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I.

Motion to Proceed IFP

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A.

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“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

Standard of Review

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,

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“face … additional hurdle[s].” Id.

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Specifically, in addition to requiring prisoners to “pay the full amount of a filing

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fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

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(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP:

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. . . if [a] prisoner has, on 3 or more prior 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 can be granted, unless the prisoner is under
imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful
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suits may entirely be barred from IFP status under the three strikes rule[.]”). The

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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

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before and after the statute’s effective date.” Id. at 1311.

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

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the

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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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

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from pursuing any other IFP civil action or appeal in federal court unless he alleges he is

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facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes,

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493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a

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plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’

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at the time of filing.”).

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B.

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As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint, as well

Application to Plaintiff

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as its attached exhibits, and has ascertained that it does not contain any plausible

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allegations to suggest he “faced ‘imminent danger of serious physical injury’ at the time

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of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted

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above, Plaintiff’s Complaint seeks injunctive relief preventing a future move to the top

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tier and money damages against the RJD officials who moved him on December 1, 2016,
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in contravention of his doctor’s recommendations to the contrary. See ECF No. 1 at 5-7.

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While Plaintiff immediately fell and claims to have been injured on December 2, 2016,

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he does not claim to have been re-assigned to an upper tier or bunk ever since, and does

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not claim to currently be assigned to an upper bunk or tier. In fact, Plaintiff’s own

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exhibits show he has been issued an updated “Comprehensive Accommodation Chrono

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(CDCR 7410)” as the result of CDCR-602HC Inmate/Parolee Health Care Appeal Log

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No. RJD HC 16055066, which “reflect[s] a lower bunk and lower tier chrono.” Id. at 32-

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33, 39. Thus, Plaintiff does not allege to have faced any “imminent” danger of serious

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physical injury at the time he filed his Complaint in this case, almost a year later, on

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September 28, 2017. See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055.
To qualify for § 1915(g)’s exception, the danger allegedly faced must be real,

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proximate, and/or ongoing. See Cervantes, 493 F.3d at 1056; Ciarpaglini v. Saini, 352

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F.3d 328, 330 (7th Cir. 2003) (“[T]he harm must be imminent or occurring at the time the

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complaint is filed.”). Speculative and non-specific allegations of potential danger, the

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possibility of retaliation, and incidents of past harm are insufficient. Cervantes, 493 F.3d

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at 1057 n.11; see also Ellington v. Clark, No. 1:09-CV-02141-AWI, 2011 WL 3500970,

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at *5 (E.D. Cal. Aug. 8, 2011) (finding prisoner’s pre-existing medical conditions and his

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claimed denial of ambulatory devices did not “rise to the level of imminent danger”);

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report and recommendation adopted, No. 1:09-CV-02141-AWI, 2011 WL 6780910

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(E.D. Cal. Dec. 27, 2011).

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And while Defendants typically carry the burden to show that a prisoner is not

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entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

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docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

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under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take
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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Plaintiff Harrison L. Burton, identified as CDCR Inmate #J-58007, has had more

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than three prior prisoner civil actions and/or appeals1 dismissed on the grounds that they

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were frivolous, malicious, or failed to state a claim upon which relief may be granted.

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They are:

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1)

Burton v. Alameida, et al., Civil Case No. 3:03-cv-02405-IEG-RBB (S.D.

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Cal. Feb. 19, 2004) (Order Dismissing Complaint for Failing to State a Claim pursuant to

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28 U.S.C. § 1915A(b)) (ECF No. 7) (strike 1)2;

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2)

Burton v. McDonald, et al., Civil Case No. 2:10-cv-01980-JAM-EFB (E.D.

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Cal. Aug. 1, 2014) (Findings and Recommendations [“F&Rs”] to dismiss Fifth Amended

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Complaint without leave to amend for failure to state a claim pursuant to 28 U.S.C.

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§ 1915A(b)) (ECF No. 84); (E.D. Cal. Oct. 22, 2014) (Order adopting F&Rs “in full” and

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dismissing action for “failure to state a claim.”) (ECF No. 85) (strike 2);

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“The in forma pauperis statute repeatedly treats the trial and appellate stages of litigation
as distinct.” Coleman v. Tollefson, __ U.S. __, 135 S. Ct. 1759, 1763-64 (2015) (“Nothing
in [the PLRA] indicat[es] that Congress considered a trial court dismissal and an appellate
court decision as if they were a single entity—or that Congress intended the former to take
effect only when affirmed by the latter.”).
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“[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a
claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended
complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 F.3d
1131, 1143 (9th Cir. 2017). A prisoner’s “failure to file an amended complaint [does] not
negate the determination already made by the court that the complaint that he had filed,
and on which he effectively elected to stand, failed to state a claim. It also does not matter
whether the dismissals were with or without prejudice.” Id. at 1142 (citing O’Neal, 531
F.3d at 1154.)
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3)

Burton v. Barnes, et al., Appeal No. 14-15354 (9th Cir. May 16, 2014)

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(Order) (“The district court has denied appellant leave to proceed on appeal in forma

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pauperis. We deny appellant’s motion to proceed in forma pauperis because we also find

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the appeal is frivolous.”) (Dkt. Entry 8 at 1)3 (strike 3); and

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4)

Burton v. Chenoweth, et al., Civil Case No. 2:14-cv-02331-KJN (E.D. Cal.

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March 4, 2016) (Order dismissing amended complaint for failing to state a claim pursuant

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to 28 U.S.C. § 1915A(b)(1), (2)) (ECF No. 24) (strike 4).

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

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three “strikes” pursuant to § 1915(g), and he fails to make a “plausible allegation” that he

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faced imminent danger of serious physical injury at the time he filed his Complaint, he is

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not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at

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1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

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prisoners with a history of abusing the legal system from continuing to abuse it while

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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

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II.

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Motion to Appoint Counsel
In addition, Plaintiff has filed a Motion to Appoint Counsel pursuant to 28 U.S.C.

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§ 1915(e)(1) (ECF No. 6). However, a motion to appoint counsel pursuant to 28 U.S.C.

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§ 1915(e)(1) necessarily depends upon Plaintiff’s ability to proceed IFP. See 28 U.S.C.

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§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

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counsel.”). It requires that Plaintiff be deemed eligible to proceed pursuant to the IFP

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statute and then, the issue remains within “the sound discretion of the trial court[,] and is

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See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s
denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted
a “strike” under § 1915(g) “even though [it] did not dismiss the appeal until later when the
[appellant] did not pay the filing fee.”).
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granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d

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1101, 1103 (9th Cir. 2004).

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Because Plaintiff is not entitled to proceed IFP pursuant to 28 U.S.C. § 1915(a) in

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this case, he is also not entitled to the appointment of counsel under § 1915(e)(1).

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III.

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Conclusion and Order
Based on the foregoing, the Court:
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DENIES Plaintiff’s Motions to Proceed IFP (ECF No. 2) and to Appoint

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Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 6) as barred by 28 U.S.C.

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§ 1915(g);

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2)

DISMISSES this civil action without prejudice based on Plaintiff’s failure

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to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C.

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§ 1914(a);

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3)

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

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

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

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

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appeal would not be frivolous); and

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4)

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IT IS SO ORDERED.

DIRECTS the Clerk of Court to close the file.

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Dated: November 28, 2017
____________________________________
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court

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