Turner v. Ghaly

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 ANTHONY DEWAYNE LEE TURNER, Case No. 22-cv-02564-EMC 8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. PAUPER STATUS IS NOT BARRED 10 SABRY GHALY, et al., Docket No. 3 11 Defendants. — 12 — — 13 — 14 Anthony DeWayne Lee Turner filed the instant pro se civil rights action regarding events 15 which occurred in 2019, when Mr. Turner was incarcerated at San Quentin State Prison (“SQSP”). 16 See Docket No. 1 (“Complaint”). Mr. Turner has applied to proceed in forma pauperis pursuant to — 17 — 28 U.S.C. § 1915 . See Docket No. 3 (“IFP Motion”). 18 A. Legal Standard 19 In 1996, Congress decided that a prisoner may not bring a civil action in forma pauperis 20 under 28 U.S.C. § 1915 , 21 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 22 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 23 be granted, unless the prisoner is under imminent danger of serious physical injury. — 24 — — 25 — 28 U.S.C. § 1915 (g). Section 1915(g) requires that the court consider prisoner actions dismissed 26 before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310 , 1311-12 27 (9th Cir. 1997). Relying on the statute’s command that “in no event” may such a prisoner 1 frivolous litigation rather than by the merits of the current action. See El-Shaddai v. Zamora, 833 2 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original). 3 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state 4 a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure 5 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little 6 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case 7 “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th 8 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 9 strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not 10 alone warrant dismissal of the present action under § 1915(g). See Andrews, 398 F.3d at 1121 . 11 Rather, dismissal of an action under § 1915(g) should only occur when, “after careful evaluation 12 of the order dismissing an [earlier] action, and other relevant information, the district court 13 determines that the action was dismissed because it was frivolous, malicious or failed to state a 14 claim.” Andrews, 398 F.3d at 1121 . 15 B. Mr. Turner Has Three Strikes 16 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g), 17 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 18 burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at 19 1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires 20 the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g) 21 dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the 22 action. Andrews, 398 F.3d at 1120 . A dismissal under § 1915(g) means that a prisoner cannot 23 proceed with his action as a pauper under § 1915, but he still may pursue his claims if he pays the 24 full filing fee at the outset of the action. 25 Mr. Turner is now given notice that the Court believes the following dismissals may be 26 counted as dismissals for purposes of § 1915(g): 27 1. Turner v. Rosenfeld, Case No. CIV-S-11-0622-EFB-P (E.D. Cal. April 6, 2012) 1 2. Turner v. Rosenfeld, Case No. 2:18-CV-2796-TLN-DMC (E.D. Cal. Jan. 7, 2019) 2 (“Rosenfeld II)” (order dismissing complaint as Heck-barred on its face); 3 3. Turner v. Napa State Hospital, Case No. 19-cv-00318-EMC (N.D. Cal. Dec. 18, 4 2019) (“Napa State Hospital”) (order dismissing complaint, after a chance to 5 amend, for failure to state a claim); and 6 4. Turner v. Sacramento City Police, Case No. 19-0417-CKD-P (E.D. Cal. May 11, 7 2020) (“Sacramento City Police”) (order dismissing complaint, after a chance to 8 amend, as Heck-barred on its face and for failure to state a claim). 9 The Court evaluated these cases based on the dismissal orders and docket sheets in them. 10 See Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime 11 the actual court files may need to be consulted). Having evaluated these cases, the Court 12 concludes that each of these dismissals counts as a strike. As to Mr. Turner’s Rosenfeld I, Napa 13 State Hospital, and Sacramento City Police actions, it is well-established that a dismissal for 14 failure to state a claim constitutes a strike. See 28 U.S.C. § 1915 (g) (an action “dismissed on the 15 grounds that it . . . fails to state a claim upon which relief may be granted” is a strike); Moore v. 16 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (same). 17 As to Mr. Turner’s Rosenfeld II and Sacramento City Police actions, the Ninth Circuit has 18 concluded that a dismissal counts as a strike where an affirmative defense, such as a Heck bar, is 19 apparent on the face of the complaint. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 20 F.3d 1048, 1055-57 (9th Cir. 2016); see also Irby v. Gilbert, No. 16-35373, 2016 WL 11618605 , 21 at *1 (9th Cir. Nov. 14, 2016) (acknowledging this holding). 22 Because of his lengthy history of filing frivolous actions, Mr. Turner simply is not entitled 23 to proceed in forma pauperis. 24 C. Mr. Turner Is Not In Imminent Danger 25 Despite having accrued three strikes pursuant to section 1915(g), a plaintiff may still be 26 able to proceed IFP if he can show that he is in imminent danger of serious physical injury. The 27 plaintiff has the burden of proving that he satisfies this exception by demonstrating that he is in 1 indicates that “imminent danger” is to be assessed at the time of the filing of the complaint. See 2 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). It is sufficient if the 3 complaint “makes a plausible allegation that the prisoner faced ‘imminent danger of serious 4 physical injury’ at the time of filing.” Id.; see, e.g., id. at 1055 (allegation that plaintiff was at risk 5 of contracting HIV or hepatitis C was sufficient to bring his complaint within the imminent danger 6 exception); cf. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (no ongoing danger 7 where plaintiff had been placed in administrative segregation following physical assaults and 8 before he filed his complaint). In this circuit, “requiring a prisoner to allege[] an ongoing danger 9 . . . is the most sensible way to interpret the imminency requirement.” Andrews II, 493 F.3d at 10 1056 (internal quotation marks omitted). 11 In addition, “the imminent danger exception to § 1915(g) requires a nexus between the 12 alleged imminent danger and a prisoner’s complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 13 2022). To qualify under the imminent danger exception, “a three-strikes prisoner must allege 14 imminent danger of serious physical injury that is both fairly traceable to unlawful conduct alleged 15 in his complaint and redressable by the court.” Id. 16 Here, Mr. Turner claimed that he received inadequate medical treatment while incarcerated 17 at SQSP. See generally, Compl. Exhibits to the Complaint reveal that this treatment was rendered 18 in 2019, and the Complaint itself reveals that by the time Mr. Turner filed this action in 2022, he 19 was incarcerated at Mule Creek State Prison. See id. at 1 & Exs. Because the allegedly 20 inadequate treatment has already been rendered, and Mr. Turner is no longer before the allegedly 21 indifferent medical team, it is plain that any danger he faced is not “imminent.” Accordingly, Mr. 22 Turner does not qualify for the imminent danger exception. 23 D. Conclusion 24 In light of these dismissals, and because Mr. Turner does not appear to be under imminent 25 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 26 than November 4, 2022, why in forma pauperis status should not be denied and this action should 27 not be dismissed pursuant to 28 U.S.C. § 1915 (g). 1 may avoid dismissal by paying the filing fee by the deadline. 2 The Court notes for Mr. Turner’s benefit that this order does not constitute a screening of 3 his claims pursuant to 28 U.S.C. § 1915A. Even if Mr. Turner pays the full filing fee, the Court 4 still will be required to conduct an initial review of the Complaint pursuant to that statute, and 5 perhaps to dismiss it. See 28 U.S.C. § 1915A(a)-(b) (requiring a court to conduct an initial review 6 of “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or 7 officer or employee of a governmental entity”). — 8 — 9 IT IS SO ORDERED. — 10 — 11 Dated: October 5, 2022 — 12 — 13 ______________________________________ EDWARD M. CHEN 14 United States District Judge — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —