(PC) Ray v. Sullivan

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 EDWARD VINCENT RAY, JR., No. 1:20-cv-01699-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED 13 v. IN FORMA PAUPERIS AND THE CASE BE DISMISSED WITHOUT PREJUDICE1 14 WILLIAM JOE SULLIVAN, et al., OBJECTIONS DUE WITHIN TWENTY-ONE 15 Defendants. DAYS 16 (Doc. No. 2) [17] 18 Plaintiff Edward Vincent Ray, Jr., a state prisoner, is proceeding pro se on his civil rights 19 complaint filed pursuant to 42 U.S.C. § 1983 on December 3, 2020. (Doc. No. 1). Plaintiff 20 accompanied the filing of his complaint with a motion to proceed in forma pauperis (“IFP”). 21 (Doc. No. 2). For the reasons set forth herein, the court recommends Plaintiff’s motion to 22 proceed IFP under 28 U.S.C. § 1915 (g) be denied because Plaintiff has had at least three 23 dismissals that constitute strikes and he has not established he meets the imminent danger 24 exception. The court further recommends the case be dismissed without prejudice if Plaintiff fails 25 to pay the filing fee before the objection period expires. [26] 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). [28] 1 I. BACKGROUND AND FACTS 2 Plaintiff is incarcerated at California Correctional Institution (CCI). His complaint, which 3 names the warden, three correctional officers, and the California Department of Corrections and 4 Rehabilitation (CDCR) as defendants, alleges due process violations and violations of CDCR’s 5 regulations stemming from Plaintiff’s transfer within CCI to a “more restrictive prison setting” so 6 officials could facilitate social distancing amid the ongoing COVID-19 pandemic. (Doc. No. 1 at 7 8). Plaintiff states the defendants “overreacted” to COVID-19 and followed “directives” rather 8 than “laws” when implementing various restrictions within the prison. (Id. at 8-12). Plaintiff 9 claims those restrictions have caused him mental anguish and loss of sleep, inter alia. (Id. at 7). 10 Plaintiff acknowledges his three-strike status but argues he should be permitted to proceed IFP 11 because he faces imminent danger because the restrictive conditions of his confinement place him 12 in danger of contracting COVID-19, his new housing unit is dirty and cramped, and he has been 13 threatened by “dangerous inmates.” (Id. at 4-6). 14 II. APPLICABLE LAW 15 The “Three Strikes Rule” states: 16 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 17 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 18 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 19 physical injury. [20] 28 U.S.C. § 1915 (g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was 21 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 22 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 23 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 24 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 25 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 26 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure 27 to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 28 To determine whether a dismissal counts as a strike, a reviewing court looks to the 1 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 2 1106, 1109 (9th Cir. 2013). For a dismissal to count as a strike, the dismissal had to be on a 3 “prior occasion,” meaning the it occurred before Plaintiff initiated the instant case. See § 4 1915(g). A dismissal counts as a strike when the dismissal of the action was for frivolity, 5 maliciousness, or for failure to state a claim, or an appeal dismissed for the same reasons. Lomax, 6 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s 7 Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); Coleman v. 8 Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike during the 9 pendency of the appeal). , A complaint is “dismissed” for purposes of §1915(g) when a district 10 court disposes of an in forma pauperis complaint requiring the full filing fee. Louis Butler 11 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim 12 relying on qualified immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681 , 683-84 13 (9th Cir. Aug. 9, 2016). 14 Although not exhaustive, dismissals that do not count as § 1915(g) strikes include: 15 dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the 16 three strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) 17 (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 18 writs of mandamus petitions, the Younger2 abstention doctrine, and Heck v. Humphrey3 generally 19 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 20 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 21 (recognizing some Heck dismissals may count as strikes but noting others do not; and reiterating 22 abstention doctrine dismissals and writs of mandamus do not count as strikes). A dismissal of a 23 claim based on sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 24 (9th Cir. 2019). The Ninth Circuit also does not count cases dismissed for lack of jurisdiction as 25 strikes. Moore v. Maricopa Cty. Sheriff's Off., 657 F.3d 890, 894 (9th Cir. 2011). Finally, the 26 Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason enumerated under [27] 2 Younger v. Harris, 401 U.S. 37 (1971). 28 3 Heck v. Humphrey, 512 U.S. 477 (1994). 1 §1915A, then that reason “saves” the dismissal from counting as a strike. Harris v. Harris, 935 2 F.3d 670 (9th Cir. 2019). 3 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 4 paying the full filing fee unless “the complaint makes a plausible allegation” that the prisoners 5 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 6 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 7 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 8 liberally to determine whether the allegations of physical injury are plausible. Williams v. 9 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 10 rejected as overly speculative or fanciful. Andrews, 493 F. 3d at 1057, fn. 11 . 11 III. ANALYSIS 12 A. Plaintiff Has Three or More Qualifying Strikes 13 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database and 14 a review of the Pacer Database reveals Plaintiff has filed at least 90 civil actions or appeals in a 15 court of the United States and has been deemed a three-striker under § 1915(g) by a number of 16 courts prior to filing this lawsuit.4 Although not exhaustive, for purposes of this report and 17 recommendation, each of the following cases are properly deemed qualifying § 1915(g) strikes 18 and each were entered before Plaintiff commenced the instant action: [19] 20 Date of Order Case Style Disposition Ray v. Schoo, et al., The district court adopted in 21 January 2, 2014 Case No. 5:10-cv-00942- full findings and 22 VAP-PJW (C.D. Cal.) recommendations which determined Plaintiff’s fifth 23 amended complaint alleging Eighth Amendment claims 24 failed to state a claim upon which relief could be granted. [25] The findings and 26 recommendations explicitly 27 4 See http://156.128.26.105/LitigantCase.aspx?PersonID=6929 (National Pro Se Database); http://pacer.usci.uscourts.gov. [28] 1 stated the dismissal would count as a “strike” against [2] Plaintiff. 3 December 13, 2014 Edward Ray, Jr. v. Kristen The Ninth Circuit found that Carter, et al, Plaintiff’s appeal was 4 Appeal Case No. 14-17369, “frivolous.” (9th Cir.) 5 Ray v. Rogers, Case. No. The district court dismissed January 17, 2017 5:16-cv-05483-EJD (N.D. Plaintiff’s case “for failure to [6] Cal.) state a claim upon which 7 relief may be granted.” Edward Ray, Jr. v. A. Leal, The Ninth Circuit denied 8 March 14, 2017 et al, Plaintiff’s appeal because it Appeal Case No. 16-16482, was “frivolous.” 9 (9th Cir.) 10 April 27, 2017 Ray v. Jefferson et. al, 4:16- The district court dismissed cv-02652-YGR (N.D. Cal.) Plaintiff’s case for failure to 11 state “cognizable” claims. Edward Ray, Jr. v. Caesar The Ninth Circuit dismissed 12 June 14, 2017 Basa, Plaintiff’s “appeal as Appeal Case No. 16-17290, frivolous.” [13] (9th Cir.) 14 This court has previously denied Plaintiff’s motion to proceed IFP in other matters 15 because of his three-striker status. See, e.g, Case No. 1:20-cv-01515-AWI-GSA at Doc. No. 12; 16 Case No. 1:19-cv-01561-AWI-SKO at Doc. No. 6. Indeed, Plaintiff acknowledges his own three 17 strike status. (Doc. No. 1 at 4). It is therefore unquestionable that Plaintiff has three or more 18 qualifying strikes for purposes of § 1915(g). 19 B. The Imminent Danger Exception Does Not Apply 20 Because Plaintiff has three or more qualifying cases, the undersigned next considers 21 whether the allegations in Plaintiff’s complaint plausibly states facts to fall within the imminent 22 danger exception. Plaintiff generally alleges he is in imminent danger of contracting COVID-19 23 because he interacts with people not wearing proper personal protective equipment and because 24 his cellmate has a compromised immune system. (Doc. No. 1 at 4). When prisons are making 25 reasonable efforts to combat COVID-19 it suggests an inmate is not in imminent danger of 26 contracting it. Anderson v. Doe, 2020 WL 7651978 , at *2 (E.D. Cal. Nov. 19, 2020), report and 27 recommendation adopted, 2020 WL 7383644 (E.D. Cal. Dec. 16, 2020), reconsideration denied, [1] 2021 WL 22416 (E.D. Cal. Jan. 4, 2021). Here, the complaint alleges Plaintiff was transferred 2 within CCI so officials could facilitate social distancing. (Doc. No. 1 at 8). This suggests CCI 3 was proactive in undertaking steps to minimize inmates’ risk of contracting COVID-19. And 4 while Plaintiff expresses a generalized fear of contracting COVID-19, he nonetheless 5 acknowledges he is “not at high risk” of catching it. (Doc. No. 1 at 9). Plaintiff also fails to 6 explain how a transfer to a lower security section of CCI will lessen his chances of contracting 7 COVID-19 or describe what personal protective equipment he or others lack. Plaintiff’s 8 conclusory concerns about contracting COVID-19 do not amount to a plausible allegation of 9 imminent danger. 10 Plaintiff next claims he is in imminent danger because CCI’s water contains lead and 11 bacteria and his cell is dusty. (Doc. No. 1 at 4). In a separate lawsuit filed more than a year prior 12 to the instant action, plaintiff raised the same concerns about the water being contaminated. Ray 13 v. Ribera, 2019 WL 5887193 , at *1 (E.D. Cal. Nov. 12, 2019), report and recommendation 14 adopted, 2019 WL 6840153 (E.D. Cal. Dec. 16, 2019). The court determined those claims did 15 not rise to imminent danger because Plaintiff “provided no basis” that the water was 16 contaminated and that any risk it posed was speculative, not imminent. (Id.). That Plaintiff again 17 raises these allegations suggest that the alleged harm is unrelated to his transfer within CCI. And 18 while Plaintiff attributes a cough and sore throat to the dust and water, he provides no medical 19 basis that his generic symptoms are related to these conditions. Nor does Plaintiff allege that he 20 sought medical care for his symptoms and was being denied medical care. 21 Plaintiff also claims he is in imminent danger because he has been “threatened” by CCI 22 staff and by fellow inmates due to the facts that he now is being housing with higher level 23 security inmates. (Doc. No. 1 at 5-6). Plaintiff alleges an inmate made a veiled threat that he 24 would be beat up if he “snitched” on fellow inmates, and that he has been threatened with needles 25 supposedly containing hepatitis and AIDS. (Doc. No. 1 at 5). The only remark he attributes to 26 CCI staff is that he was told inmates like him are “crybabies” for “always filing grievances.” 27 (Id.). Even if true, it is difficult to construe this statement as threatening, let alone portending 28 imminent danger. The other comments purportedly made by unidentified fellow inmates also do 1 not demonstrate imminent danger. Allegations that are “[o]verly speculative and fanciful … do 2 not plausibly show imminent danger.” Stine v. Fed. Bureau of Prisons, 2015 WL 5255377 , at *6 3 (E.D. Cal. Sept. 9, 2015). Vague “verbal threats of physical harm to [ ] health and safety” are 4 insufficient “to demonstrate imminent danger of serious physical injury.” Cruz v. Pfeiffer, 2021 5 WL 289408 , at *2 (E.D. Cal. Jan. 28, 2021). Plaintiff does not identify which inmate made the 6 alleged threats or that he reported the threat to correctional officials and they refused to take any 7 action. While a Plaintiff “need not wait” until the event of which he alleges occurs, see e.g. 8 Helling v. McKinney, 509 U.S. 25, 33-34 (1993), he must provide some factual specificity to 9 support his allegations. Accordingly, without any factual basis these threats are too speculative 10 and vague to demonstrate imminent danger. Based on the foregoing, the undersigned finds no 11 plausible allegations that Plaintiff is in imminent danger to avail himself of the imminent danger 12 exception to the three-strike bar. 13 Accordingly, it is RECOMMENDED: 14 Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 2) be denied under 28 15 U.S.C. § 1915 (g) and he be required to pay the filing fee within twenty-one days or the complaint 16 be dismissed without prejudice. 17 NOTICE TO PARTIES 18 These findings and recommendations will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within twenty-one 20 (21) days after being served with these findings and recommendations, a party may file written 21 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 22 Findings and Recommendations.” Parties are advised that failure to file objections within the 23 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 24 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 /// 26 /// [28] 1 | ITIS SOORDERED. [2] 3 | Dated: _ June 2, 2021 Mine WN. BareA Yack HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE