(PC) Miller v. Meda

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 NORRIS DAJON MILLER, Case No. 1:22-cv-264-HBK 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 JANET MEDA; JOVITA VILLANUEVA; V. PATEL; C. WILLIAMS, FOURTEEN-DAY OBJECTION PERIOD [15] Defendants. ORDER TO ASSIGN A DISTRICT JUDGE [16] (Doc. No. 2) [18] 19 Plaintiff Norris Dajon Miller, a state prisoner, initiated this action by filing a pro se civil 20 rights complaint under 42 U.S.C. § 1983 . (Doc. No. 1). Plaintiff seeks leave to proceed in forma 21 pauperis (“IFP motion”). (Doc. No. 2). 22 For the reasons discussed below, the undersigned recommends the district court deny 23 Plaintiff’s IFP motion under 28 U.S.C. § 1915 (g) because Plaintiff has at least three dismissals 24 that constitute strikes and did not establish that he meets the imminent danger exception. Plaintiff 25 must pay the full filing fee if he wishes to proceed with a civil action. 26 BACKGROUND AND FACTS 27 Plaintiff initiated this action by delivering a civil rights complaint to correctional officials [28] 1 for mailing on March 1, 2022. (Doc. No. 1). The complaint names as defendants Janet Meda, 2 Jovita Villanueva, V. Patel, and C. Williams, who worked in the medical department at North 3 Kern State Prison at the time of the events giving rise to Plaintiff’s claim. (Id. at 1-2). The 4 complaint alleges an Eight Amendment deliberate indifference claim stemming from defendants 5 not timely refilling a prescribed skin cream for Plaintiff’s eczema. (Id. at 3). Plaintiff complains 6 that he requested a refill of the cream used to treat his eczema on February 25, 2020, but he did 7 not receive a refill of the cream until April 2, 2020. (Id. at 3-4). Plaintiff claims that, due to the 8 delay in receiving the cream, he suffered “permanent skin damage and al[l]igator skin” and 9 experienced pain and suffering. (Id. at 7). As relief, Plaintiff seeks monetary damages in excess 10 of one billion dollars for the permanent damage done to his skin and for his past pain and 11 suffering. (Id. at 9). 12 APPLICABLE THREE STRIKE LAW 13 The “Three Strikes Rule” states: 14 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 15 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 16 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 17 physical injury. [18] 28 U.S.C. § 1915 (g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 19 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 20 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 21 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 22 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 23 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 24 2007). 25 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 26 the dismissal must have been before plaintiff initiated the current case. See § 1915(g). The 27 reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 738 F.3d 1106 , 1109 28 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the action was for frivolity, 1 maliciousness, or for failure to state a claim, or an appeal was dismissed for the same reasons. 2 Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. 3 Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); 4 Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike 5 during the pendency of the appeal). It is immaterial whether the dismissal for failure to state a 6 claim was with or without prejudice, as both count as a strike under § 1915(g). Lomax, 140 S. Ct. 7 at 1727 . When a district court disposes of an in forma pauperis complaint requiring the full filing 8 fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, [9] 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified 10 immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 11 2016). Dismissals based on prosecutorial immunity may count as a strike depending on whether 12 the court dismissed for failure to state a claim or as frivolous based on prosecutorial immunity. 13 See Green v. CDCR, No. 2:14-cv-2854-TLN-AC, 2018 WL 3089395 *3, n. 4 (E.D. Cal. June 22, 14 2018)(noting that prosecutorial immunity would support a strike if it was dismissed under 15 qualifying reason under the PLRA)(citing Washington v. Los Angeles County Sheriff’s Dep’t, 833 16 F.4d 1048 (9th Cir. 2016)); Aldernman v. Pierce County Prosecutor’s Office, 2017 WL 3034642 17 *3-*4 (W.D. Wash. June 16, 2017)(reviewing whether prosecutorial immunity counts as a strike 18 in the various circuit court of appeals, noting the Ninth Circuit has not yet ruled). Dismissals of 19 complaint as time barred under the applicable statute of limitations counts as a strike. Belanus v. 20 Clark, 796 F.3d 1021 (9th Cir. 2015). Further, where a court dismisses a complaint for failure to 21 state claim with leave to amend, the court’s subsequent dismissal for failure to comply with a 22 court order by filing an amended complaint constitutes a strike for purposes of § 1915(g). Harris 23 v. Magnum, 863 F.3d 1133, 1143 (9th Cir. 2017). 24 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 25 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 26 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 27 Andrews v. Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger 28 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial 1 allegations” liberally to determine whether the allegations of physical injury are plausible. 2 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent 3 danger may be rejected as overly speculative, fanciful, or “conclusory or ridiculous.” Andrews, [4] 493 F.3d at 1057, fn. 11 . Similarly, “vague and utterly conclusory assertions” of imminent 5 danger are insufficient. White v. Colorado, 157 F.3d 1226 , 1231–32 (10th Cir. 1998). Instead, 6 the “imminent danger” exception exists “for genuine emergencies,” where “time is pressing” and 7 “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, 8 conditions that posed imminent danger to a plaintiff at some earlier time are immaterial, as are 9 any subsequent conditions. Cervantes, 493 F.3d at 1053 ; Blackman v. Mjening, 1:16-cv-0142110 LJO-GSA-PC, 2016 WL 5815905 , at *1 (E.D. Cal. Oct. 4, 2016). 11 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 12 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 13 ‘imminent danger’ exception of § 1915(g).” Stine v. Fed. Bureau of Prisons, 2015 WL 5255377 , 14 at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293 , 298–99 (2d Cir. 15 2009)). To determine whether such a nexus exists, the court considers “(1) whether the 16 imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable 17 to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome 18 would redress that injury. The three-strikes litigant must meet both requirements in order to 19 proceed [in forma pauperis].” Id. 20 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. § 21 1915(g), some courts have concluded the proper procedure is to outright dismiss the case without 22 prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled. See 23 Hardney v. Hampton, No. 2:20-cv-01587-WBS-DMC-P, 2021 WL 4896034 , at *4 (E.D. Cal. 24 Oct. 20, 2021), report and recommendation adopted, No. 2:20-cv-01587-WBS-DMC-P, 2021 25 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 26 2002); Campbell v. Vance, No. CIV S-05-1163 RRB, 2005 WL 3288400 , at *1 (E.D. Cal. Nov. 27 30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the filing fee 28 before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, Case No. 1:21-cv1 320-NONE-HBK, 2021 WL 1339146 , report and recommendation adopted in part and rejected 2 in part, 2021 WL 2227810 (E.D. Cal. June 2, 2021)(rejected immediate dismissal, instead 3 permitting 30 days to pay filing fee, and if not, then requiring dismissal); Trujillo Cruz v. White, 4 No. 2:19-cv-1304-KJM-DMC, 2019 WL 4917192 (Oct. 4, 2019), report and recommendation 5 adopted in part and rejected in part, Trujillo-Cruz v. White, 2020 WL 1234201 (E.D. Cal. March 6 13, 2021)(rejected immediate dismissal, instead permitting 30 days to pay filing fee, and if not 7 then requiring dismissal). 8 The preceding law must be taken in the context of congressional intent when enacting the 9 Prison Litigation Reform Act. As the United States Supreme Court recently noted in Lomax, 10 “[t]he point of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner 11 suits.” Lomax, 140 S.Ct. at 1726 . By curbing the “flood of nonmeritorious claims,” § 1915(g) 12 provides the court with a mechanism to recognize a “three striker,” deny IFP on that basis, require 13 payment of the full filing fee, which absent being paid, the court may dismiss the case, thereby 14 permitting time for consideration of suits more likely to succeed. Lomax, 140 S.Ct. at 1726 ; see 15 also Bruce v. Samuels, 577 U.S. 82, 85 (2016) (recognizing PLRA was “designed to filter out the 16 bad claims filed by prisoners and facilitate consideration of the good.”) (citations and internal 17 quotations and alterations omitted). 18 ANALYSIS 19 A. Plaintiff Has Three or More Qualifying Strikes 20 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 21 118, 119 (9th Cir. 1980). A review of the Pacer Database reveals Plaintiff has filed at least 10 22 civil actions in a district court or appellate court of the United States and has had at least three 23 cases dismissed that qualify as a strike under Ninth Circuit caselaw prior to filing this lawsuit. 24 Although not exhaustive, for purposes of this report and recommendation, each of the following 25 cases are properly deemed qualifying § 1915(g) strikes and each were entered before the instant 26 action was filed: 27 /// [28] 1 Date of Order Case Style Disposition 2 Miller v. People of the State Dismissed sua sponte as state July 12, 2010 of California, Case No. and federal judges immune [3] 2:20-cv-05078-UA-DUTY and complaint legally and 4 (C.D. Cal. 2010) patently frivolous Miller v. Johnson, Case No. Order dismissing action as November 10, 2016 5 1:16-cv-727-JLT (E.D. Cal. barred by the statute of 2016) limitations 6 Miller v. Serda, Case No. Order dismissing action for July 24, 2017 1:17-cv-692-JLT (E.D. Cal.) failure to state a claim [7] Miller v. Morris, Case No. Order adopting Findings and May 3, 2018 8 2:17-cv-2966-SJO-SS (C.D. Recommendations dismissing Cal. 2018) action for failure to state a 9 claim based on prosecutorial immunity related to Plaintiff [10] suing prosecutor from his 11 criminal conviction 12 Miller v. Keenan, Case No. Order adopting Findings and June 19, 2018 2:17-cv-2969-SJO-SS (C.D. Recommendations dismissing 13 Cal. 2018 ) case for failure to state a claim based on prosecutorial [14] immunity related to Plaintiff 15 suing prosecutor from his criminal conviction [16] 17 Considering two of the five cases listed above involved suits against prosecutors and 18 prosecutorial immunity, the undersigned must evaluate whether these prosecutorial immunity 19 dismissals above count as strikes for purposes of § 1915(g). Supra at 3 (citing Green v. CDCR, 20 No. 2:14-cv-2854-TLN-AC, 2018 WL 3089395 *3, n. 4 (E.D. Cal. June 22, 2018)(noting that 21 prosecutorial immunity would support a strike if it was dismissed under qualifying reason under 22 the PLRA)(citing Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.4d 1048 (9th Cir. 23 2016)); Aldernman v. Pierce County Prosecutor’s Office, 2017 WL 3034642 *3-*4 (W.D. Wash. 24 June 16, 2017)(reviewing whether prosecutorial immunity counts as a strike in the various circuit 25 court of appeals, noting the Ninth Circuit has not yet ruled). 26 In Miller v. Morris, Plaintiff sued George Morris, the prosecutor who worked on his state 27 criminal case during the month of May. See Case No. 2:17-cv-2966-SJO, C.D. Cal. May 3, 2018 [28] 1 (Doc. No. 11 at 5). Proceeding on his second amended complaint, Plaintiff pursued false arrest, 2 false imprisonment, and malicious prosecution claims. (Id. at 5). Citing § 1915A, the court 3 dismissed the action on all grounds, with prejudice, for failure to state a claim, noting any further 4 amendments would be futile. (Id. at 8, 16, 24). Because the court dismissed this claim for failure 5 to a state a claim, this case counts as a strike under § 1915(g). Green v. CDCR, No. 2:14-cv6 2854-TLN-AC, 2018 WL 3089395 *3, n. 4 (citations omitted); Aldernman, 2017 WL 3034642 7 *3-*4. 8 Turning to Miller v. Keenan, Plaintiff sued the Deputy District Attorney alleging false 9 arrest and false imprisonment. Case No. 2:17-cv-2969-SJO-SS, C.D. Cal., June 19, 2018 (Doc. 10 No. 1). Upon screening the magistrate judge found the complaint failed to state a claim and 11 directed Plaintiff to file an amended complaint. (Id., Doc. No. 6). When Plaintiff failed to timely 12 comply, the magistrate judge issued a report and recommendation recommending the district 13 court dismiss the case for failure to prosecute or obey court orders under Federal Rule of Civil 14 Procedure 41(b), or alternatively, dismiss the complaint failed to state a claim and was barred by 15 absolute prosecutorial immunity and amendment of the complaint would be futile. (Doc. No. 12 16 at 2-3, 4-7, 8-13). After the report issued, Plaintiff filed an amended complaint. (Doc. No. 16). 17 The district court reviewed the amended complaint, found it failed to correct the deficiencies, the 18 sole named defendant was “immune,” the amended complaint did not contain sufficient 19 allegations to overcome prosecutorial immunity, and dismissed the case without prejudice. (Doc. 20 No. 20). Thus, it appears that this case was dismissed solely on the basis of prosecutorial 21 immunity and arguably does not ring the strike bell. 22 Nonetheless, as evidenced by the above, Plaintiff has at least three other qualifying strikes 23 for purposes of § 1915(g). 24 B. The Imminent Danger Exception Does Not Apply 25 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the 26 complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical 27 injury as of the date the complaint is filed. Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th 28 Cir. 2007). Liberally construing the complaint, the undersigned find it contains no plausible 1 | allegations sufficient to allege Plaintiff was in imminent danger of serious physical injury at the 2 | time he filed the action. Indeed, the complaint complains of events that occurred almost two 3 | years ago from an alleged delay in receiving cream to treat his eczema. There are no allegations 4 | that from which the court can find any basis that Plaintiff is currently under threat of imminent 5 | physical danger to invoke the § 1915(g) exception. Based on the foregoing, the undersigned 6 | recommends Plaintiff's IFP motion be denied under § 1915(g) due to his three-strike status and 7 | his failure to meet the imminent danger exception. 8 Based on the foregoing, the Court RECOMMENDS: 9 Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) be DENIED and he 10 | be ordered to pay the $402.00 filing fee because he qualifies as a three-striker under § 1915(g). 11 It is further ORDERED that the Clerk of Court is DIRECTED to randomly assign a 12 | United States District Judge for consideration of these Findings and Recommendations. 13 NOTICE TO PARTIES 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) 16 | days after being served with these findings and recommendations, a party may file written 17 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Parties are advised that failure to file objections within the 19 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 20 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [21] | Dated: _ March 23, 2022 Mile. Wh. foareh fackte 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE