(PC) Quair v. Collier

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SAMMY R. QUAIR, SR., Case No. 1:21-cv-01474-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR LEAVE 13 v. TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915 (g) 14 LIEUTENANT MR. COLLIER, ET. AL., FOURTEEN-DAY OBJECTION PERIOD 15 Defendants. (Doc. No. 2) [16] ORDER TO ASSIGN TO DISTIRCT JUDGE [17] 18 Plaintiff Sammy R. Quair, Sr., a prisoner incarcerated at Kings County Jail-Hanford, 19 initiated this action by filing a pro se civil rights complaint under 42 U.S.C. § 1983 . (Doc. No. 1). 20 Plaintiff seeks leave to proceed in forma pauperis (“IFP motion”). (Doc. No. 2). 21 For the reasons discussed below, the undersigned recommends the district court deny 22 Plaintiff’s IFP motion under 28 U.S.C. § 1915 (g) because Plaintiff has had at least three 23 dismissals that constitute strikes and he has not established he meets the imminent danger 24 exception. Plaintiff must pay the full filing fee if he wishes to proceed with a civil action. 25 BACKGROUND AND FACTS 26 The Complaint names the following defendants: Lieutenant Mr. Collier, Mr. Aguirree, 27 Senior Mr. Anderson, Mrs. Esponoza, Mrs. Camarena, Mrs. Arellano, and Jane and Jon Does. 28 (Doc. No. 1 at 1). Plaintiff identifies the following three claims for relief: (1) First Amendment 1 retaliation (id. at 3); (2) Fifth Amendment due process (id. at 5); (3) Fourteenth Amendment 2 “equality of safety and security to all inmates confined.” (id. at 6). 3 The Complaint sets forth unrelated claims ranging between retaliation to cruel and 4 unusual conditions of confinement. (See generally Id.). In claim one, Plaintiff alleges he faces 5 retaliation stemming from the filing of another civil action pending at 1:21-cv-01214-EPG(PC) 6 pertaining to violations from the COVID-19 pandemic. (Id. at 3). As a result of filing what 7 Plaintiff calls the “quarantine lawsuit” involving many defendants, Plaintiff alleges he has faced 8 retaliatory acts, including denial of day room privileges and deprivation of medical treatment for 9 his cousin, after his cousin swallowed razor blades and dominoes. (Id.). In claim two, Plaintiff 10 alleges he has been denied access to the dayroom for no reason and has not received any write-up 11 or disciplinary action. (Id. at 5). Plaintiff suspects it was because he hit an emergency button 12 when an inmate with crutches fell and he summoned aid. (Id.). In claim three, Plaintiff alleges 13 he is housed in a pod at the county jail that does not meet the standards required by state law or 14 “Title 24.” (Id. at 5-6). To the extent discernable, Plaintiff believes a fire may break out in the 15 pod and due to gangs being housed in the same pod “inmates will try to kill each other.” (Id.). In 16 claim four, Plaintiff alleges the guards are “very corrupt” and believes they practice witchcraft 17 and are satanic/devil worshippers. (Id. at 6). As relief, Plaintiff requests that the Court send the 18 Department of Justice to investigate the county jail and to eliminate the corruption. (Id. at 7). 19 APPLICABLE THREE STRIKE LAW 20 The “Three Strikes Rule” states: 21 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 22 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury. [25] 28 U.S.C. § 1915 (g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was 26 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 27 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 28 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 1 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 2 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 3 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure 4 to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 5 To determine whether a dismissal counts as a strike, a reviewing court looks to the 6 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 7 1106, 1109 (9th Cir. 2013). For a dismissal to count as a strike, the dismissal had to be on a 8 “prior occasion,” meaning it occurred before plaintiff initiated the instant case. See § 1915(g). A 9 dismissal counts as a strike when the dismissal of the action was for frivolity, maliciousness, or 10 for failure to state a claim, or an appeal dismissed for the same reasons. Lomax, 140 S. Ct. at 11 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 12 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 13 1759, 1761 (2015) (dismissal that is on appeal counts as a strike during the pendency of the 14 appeal). When a district court disposes of an in forma pauperis complaint requiring the full filing 15 fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, [16] 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified 17 immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 18 2016). Further, and relevant here, where a court dismisses a complaint for failure to state claim 19 with leave to amend, the court’s subsequent dismissal for failure to comply with a court order by 20 filing an amended complaint constitutes a strike for purposes of § 1915(g). Harris v. Magnum, [21] 863 F.3d 1133, 1143 (9th Cir, 2017). 22 Although not exhaustive, dismissals that do not count as § 1915(g) strikes include: 23 dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the 24 three strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) 25 (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 26 writs of mandamus petitions, the Younger1 abstention doctrine, and Heck v. Humphrey2 generally [27] 1 Younger v. Harris, 401 U.S. 37 (1971). 28 2 Heck v. Humphrey, 512 U.S. 477 (1994). 1 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 2 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 3 (recognizing some Heck dismissals may count as strikes but noting others do not; and reiterating 4 abstention doctrine dismissals and writs of mandamus do not count as strikes). A dismissal of a 5 claim based on sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 6 (9th Cir. 2019). The Ninth Circuit also does not count cases dismissed for lack of jurisdiction as 7 strikes. Moore v. Maricopa Cty. Sheriff's Off., 657 F.3d 890, 894 (9th Cir. 2011). Finally, the 8 Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason enumerated under 9 § 1915A, then that reason “saves” the dismissal from counting as a strike. Harris v. Harris, 935 10 F.3d 670 (9th Cir. 2019). 11 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 12 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoners 13 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 14 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 15 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 16 liberally to determine whether the allegations of physical injury are plausible. Williams v. 17 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 18 rejected as overly speculative, fanciful, or “conclusory or ridiculous.” Andrews, 493 F.3d at 19 1057, fn. 11. 20 The foregoing law must be taken in the context of Congressional intent when enacting the 21 Prison Litigation Reform Act, under which § 1915(g) falls. As the United States Supreme Court 22 recently discussed in Lomax, the purpose of § 1915(g) was to curb the “flood of nonmeritorious 23 claims,” even if not abusive claims, but to allow the court a mechanism to recognize a “three 24 striker,” deny IFP on that basis, require payment of the full filing fee, which absent being paid, 25 dismiss the case, and thereby permit time for consideration of suits more likely to succeed. 26 Lomax, 140 S.Ct. at 1726; see also Bruce v. Samuels, 577 U.S. 82, 85 (2016) (the PLRA was 27 designated to filter out the bad claims filed by prisoners and facilitate consideration of the good, 28 resulting in the payment of all future filing fees payable up front for those prisoner-plaintiffs 1 deemed three-strikers). 2 ANALYSIS 3 A. Plaintiff Has Three or More Qualifying Strikes 4 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database and 5 a review of the Pacer Database reveals plaintiff has filed at least 12 civil actions or appeals in a 6 court of the United States and has been deemed a three-striker under § 1915(g) prior to filing this 7 lawsuit. Although not exhaustive, for purposes of this report and recommendation, each of the 8 following cases are properly deemed qualifying § 1915(g) strikes and each were entered before 9 Plaintiff commenced the instant action: [10] 11 Date of Order Case Style Disposition Quair v. Vento, et. al., Dismissing action for failure 12 March 21, 2017 Case No. 1:14-cv-1616- to state a claim, failure to 13 AWI-BAM (E.D. Cal. obey court orders, and failure March 21, 2017) to prosecute after plaintiff 14 failed to file an amended complaint after § 1915A 15 screening Quair v. Board of Dismissing action for failure 16 July 6, 2020 Supervisors, Case No. 1:19- to comply with court’s orders 17 cv-902-DAD-SKO (E.D. after failing to file an Cal. July 6, 2020) amended complaint after § 18 1915A screening Quair v. Board of Dismissing action for failure 19 August 11, 2020 Supervisors, Case No. 1:19- to state a claim and failure to 20 cv-993-DAD-BAM comply with court’s order after plaintiff failed to file an 21 amended complaint after § 1915A screening [22] 23 This Court has previously denied Plaintiff’s IFP motions in other matters because of his 24 three-striker status. See e.g. Quair v. Thomas, Case No. 1:21-cv-1397-SKO (PC) (E.D. Cal. 25 2021). As evidenced by the above, Plaintiff has three or more qualifying strikes for purposes of § 26 1915(g). 27 B. The Imminent Danger Exception Does Not Apply 28 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the 1 | Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical 2 | injury as of the date the Complaint is filed. Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th 3 | Cir. 2007). Here, liberally construing the Complaint, the undersigned find it contains no plausible 4 | allegations sufficient to allege Plaintiff was in imminent danger of serious physical injury when 5 | he filed the action. Plaintiff's allegations related to his safety are fanciful (involve witchcraft and 6 | satanic worship) or speculative at best (fire). Supra at 3. These kind of assertions are insufficient 7 | to invoke the § 1915(g) exception because allegations that are speculative, fanciful, or conclusory 8 | or ridiculous, do not plausibly show imminent danger. Andrews, 493 F.3d at 1057, fn. 11 . Based 9 | on the foregoing, the undersigned recommends Plaintiff's IFP motion be denied under § 1915(g) 10 | due to Plaintiff's three-strike status and the failure to meet the imminent danger exception. 11 Accordingly, it is ORDERED: 12 The Clerk shall randomly assign this case to a district court judge. 13 It is further RECOMMENDED: 14 Plaintiff's IFP motion be denied and, if Plaintiff fails to pay the $402.00 filing fee within 15 | specified time set by the District Court, the case be automatically dismissed. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within fourteen 19 || (14) days after being served with these findings and recommendations, a party may file written 20 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Parties are advised that failure to file objections within the 22 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). | Dated: _ December 1.2021 Mihaw. Wh. foareh fackte 25 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE