Alvin Darrell Smith v. United States

Case 5:22-cv-00702-JFW-AFM Document 3 Filed 05/19/22 Page 1 of 5 Page ID #:664 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION [11] 12 ALVIN DARRELL SMITH, Case No. 5:22-cv-00702-JFW (AFM) 13 Plaintiff, ORDER TO PAY THE FILING 14 v. FEES OR TO SHOW CAUSE 15 UNITED STATES, et al., PURSUANT TO 28 U.S.C. § 1915 (g) 16 Defendants. [17] 18 On April 22, 2022, plaintiff filed a pro se civil rights Complaint pursuant to [19] 42 U.S.C. § 1983 . Plaintiff is a federal prisoner presently incarcerated at USP 20 Victorville, in Adelanto, California. The Complaint was accompanied by a Request 21 to Proceed Without Prepayment of Filing Fees or in forma pauperis (“IFP”), but did 22 not include the required prison trust account statement and authorization. Plaintiff 23 names as defendants the United States and numerous Bureau of Prisons personnel in 24 Washington, D.C., United States Penitentiary-Allenwood in White Deer, 25 Pennsylvania, Oklahoma Federal Transit Center, United States Penitentiary26 Victorville, and Desert Valley Hospital, as well as a prison supply vendor. The 27 Complaint attaches over 500 pages of exhibits and medical articles. 28 Pursuant to 28 U.S.C. § 1915A, the Court is required to screen any “complaint Case 5:22-cv-00702-JFW-AFM Document 3 Filed 05/19/22 Page 2 of 5 Page ID #:665 1 in a civil action” if, at the time the plaintiff files the complaint, he or she is a prisoner 2 seeking “redress from a governmental entity.” See 28 U.S.C. § 1915A(a); Olivas v. 3 Nev. ex rel. Dep’t of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017). A review of past 4 civil actions filed by plaintiff in this Court and in other federal court reflects that 5 plaintiff is subject to the provisions of 28 U.S.C. §1915 (g). Under §1915(g), a 6 prisoner may not “bring a civil action or appeal a judgment in a civil action or 7 proceeding” without prepayment of the filing fee “if the prisoner has, on 3 or more 8 prior occasions, while incarcerated or detained in any facility, brought an action or 9 appeal in a court of the United States that was dismissed on the grounds that it is 10 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless 11 the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. 12 §1915(g). Such dismissal is deemed a “strike.” The Ninth Circuit has held that the 13 phrase “fails to state a claim on which relief may be granted” as used in §1915(g), 14 parallels the language of Fed. R. Civ. P. 12(b)(6) and carries the same interpretation; 15 that the word “frivolous” refers to a case that is “of little weight or importance: having 16 no basis in law or fact”; and the word “malicious” refers to a case “filed with the 17 ‘intention or desire to harm another.’” See Andrews v. King, 398 F.3d 1113 , 1121 18 (9th Cir. 2005) (explaining the terms used in §1915(g)). In addition, the Ninth Circuit 19 has held that the prior denial of IFP status on the basis of frivolity or failure to state 20 a claim constitutes a strike for purposes of §1915(g). See O’Neal v. Price, 531 F.3d 21 1146, 1153-55 (9th Cir. 2008) (also stating that a dismissal without prejudice may 22 count as a strike). 23 A plaintiff may proceed IFP in a civil action after having accumulated three 24 strikes only upon a showing that he or she was “under imminent danger of serious 25 physical injury.” 28 U.S.C. § 1915 (g). The availability of the “imminent danger” 26 exception “turns on the conditions a prisoner faced at the time the complaint was 27 filed, not at some earlier or later time.” See Andrews v. Cervantes, 493 F.3d 1047 , 28 1053 (9th Cir. 2007). Further, “the prisoner bears the ultimate burden of persuading [2] Case 5:22-cv-00702-JFW-AFM Document 3 Filed 05/19/22 Page 3 of 5 Page ID #:666 1 the court that § 1915(g) does not preclude IFP status.” Richey v. Dahne, 807 F.3d 2 1202, 1206 (9th Cir. 2015). 3 The Court takes judicial notice of the following prior civil actions filed by 4 plaintiff in the District Courts nationwide that qualify as strikes for purposes of 5 § 1915(g): 6 (1) Smith v. U.S. Attorney General, United States District Court for the Middle 7 District of Pennsylvania, Case No. 15-01672 (dismissed action as frivolous 8 pursuant to 28 U.S.C. § 1915 (e)). 9 (2) Smith v. Conley, United States District Court for the Southern District of West 10 Virginia, Case No. 02-00184 (dismissed action for failure to state a claim 11 upon which relief may be granted and found that the dismissal constitutes a 12 “strike” within the meaning of 28 U.S.C. § 1915 (g)). 13 (3) Smith v. Mahoning Cty Child Support Enforcement Agency, United States 14 District Court for the Northern District of Ohio, Case No. CV 98-02850 15 (dismissed action as legally frivolous pursuant to 28 U.S.C. § 1915 (e)). 16 (4) Smith v. District of Columbia, United States District Court for the District of 17 Columbia, Case No. 97-01901 (dismissed action for failure to state a claim 18 upon which relief may be granted). 19 (5) Smith v. District of Columbia, United States District Court for the District of 20 Columbia, Case No. 97-01987 (dismissed action for failure to state a claim 21 upon which relief may be granted). 22 (6) Smith v. District of Columbia, United States District Court for the District of 23 Columbia, Case No. 97-01988 (dismissed action for failure to state a claim 24 upon which relief may be granted). 25 (7) Smith v. District of Columbia, United States District Court for the District of 26 Columbia, Case No. 97-02484 (dismissed action for failure to state a claim 27 upon which relief can be granted). 28 (8) Smith v. District of Columbia, United States District Court for the District of [3] Case 5:22-cv-00702-JFW-AFM Document 3 Filed 05/19/22 Page 4 of 5 Page ID #:667 1 Columbia, Case No. 97-02485 (dismissed action for failure to state a claim 2 upon which relief may be granted).1 3 Because plaintiff had already accumulated more than three strikes before he 4 initiated this action, plaintiff is precluded from proceeding IFP herein unless he can 5 show that, at the time he mailed the Complaint to the Court for filing, plaintiff was 6 “under imminent danger of serious physical injury.” 28 U.S.C. §1915 (g); see 7 Andrews, 493 F.3d at 1053 . 8 The allegations of the Complaint concern conditions and actions dating back 9 as far as 2001 and at several different federal prisons. They include that plaintiff has 10 a history of diabetes, that plaintiff’s toe and other portions of his right foot were 11 amputated in the spring of 2020, and that plaintiff had post-operative complications 12 in March 2020. Plaintiff further alleges that his prior grievances have been ignored 13 by prison officials. The Complaint appears to generally allege inadequate care 14 regarding plaintiff’s diabetes, a delay or failure at various times by prison officials to 15 provide plaintiff with, inter alia, a special diet and prescriptions, a back brace/belt, 16 special boots, diabetic shoes, and gloves for use with his wheelchair. The Complaint 17 also alleges that plaintiff has had back pain and that his weight has dropped from his 18 normal weight of 225 pounds. Plaintiff alleges that the food served in the prisons is 19 high in carbohydrates and has caused his diabetes condition to worsen.2 Most of 20 these allegations arise from events that happened months or years in the past and [21] 22 1 In addition to the above cases, other federal courts have found that plaintiff has accumulated three or more strikes within the meaning of Section 1915(g). See, e.g., Smith v. District of 23 Columbia, 182 F.3d 25 (D.C. Cir. 1999) (holding plaintiff was not entitled to proceed IFP on appeal because he had three strikes within the meaning of Section 1915(g)); Smith v. Samuels, Central [24] District of California, Case No. 14-01713 (revoking plaintiff’s IFP status because plaintiff had 25 accumulated more than three prior strikes and citing other cases). [26] 2 Many of plaintiff’s medical and diet allegations regarding USP Victorville were also raised in a prior Central District of California action brought by plaintiff, Case No. EDCV20-1015. That case 27 was dismissed without prejudice pursuant to 28 U.S.C. § 1915 (g) and is currently the subject of a pending appeal by plaintiff in the Ninth Circuit. [4] Case 5:22-cv-00702-JFW-AFM Document Filed 05/19/22 Page5of5 Page ID #:668 1 || concern chronic conditions from which plaintiff allegedly suffers. They do not 2 || plausibly allege that plaintiff was likely to face serious physical injury at the time of 3 || the present Complaint. Accordingly, the Court tentatively concludes that the factual 4 || allegations in the Complaint fail to raise a reasonable inference that plaintiff was 5 || facing imminent danger of serious physical injury at the time that he lodged this 6 || Complaint for filing in May 2022. 7 Nevertheless, pursuant to 28 U.S.C. §1915 (g), plaintiff shall have the 8 || opportunity to be heard on this matter before the request to proceed IFP is denied or 9 || the action is dismissed. IT THEREFORE IS ORDERED that, on or before June 10, 10 || 2022, plaintiff shall show cause in writing: 11 (1) why his prior cases cited above should not be considered strikes pursuant 12 || to 28 U.S.C. §1915 (g), 13 (2) why leave to proceed IFP should not be denied, and 14 (3) why this action should not be dismissed pursuant to 28 U.S.C. § 1915 (g). 15 In the alternative, plaintiff is advised that he may avoid dismissal of this action 16 || and allow the Court to screen the claims raised in his Complaint pursuant to 28 U.S.C. 17 || § 1915A if he pays the full filing fees by the date set forth above. 18 Plaintiffs failure to timely respond to this Order to Show Cause in writing 19 || or to pay the full filing fees may be deemed as consent by plaintiff to the 20 || dismissal of this action without prejudice. [21] 22 || DATED: 5/19/2022 ° Chk Woxke— ~ ALEXANDER F. MacKINNON 25 UNITED STATES MAGISTRATE JUDGE