Allen v. Richard J. Donovan Correctional Facility

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL DEWAYNE ALLEN, Case No.: 3:22-cv-01131-GPC-KSC CDCR #T-55834, [12] ORDER: Plaintiff, [13] vs. 1) DENYING MOTION TO [14] PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915 (g) RICHARD J. DONOVAN [ECF No. 2] [16] CORRECTIONAL FACILITY, JOHN 17 DOE, Doctor, AND 18 Defendants. (2) DISMISSING CIVIL ACTION 19 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE [20] REQUIRED BY 28 U.S.C. § 1914 (a) [21] 22 Plaintiff, Michael Dewayne Allen (“Plaintiff” or “Allen”) currently incarcerated at 23 Richard J. Donovan Correctional Facility (“RJD”), in San Diego, California, has filed a 24 civil rights Complaint pursuant to 42 U.S.C. § 1983 . See Compl., ECF No. 1. Allen claims 25 a doctor at RJD (defendant “John Doe doctor”) discontinued his gabapentin prescription 26 which he alleges was given to him to prevent seizures. Id. at 2–3. As a result, Allen suffered 27 a seizure and hit his mouth on the toilet, resulting in a chipped tooth. Id. The tooth also 28 went through his lip. Id. He seeks $2.1 million in damages, $2.9 million in punitive 1 damages, and $1.5 million for pain and suffering. Id. at 7 . He also seeks an injunction 2 preventing defendants “from discontinuing another doctor’s orders and prescriptions.” Id. 3 Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914 (a) at the time 4 he filed suit; instead he filed a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF 5 No. 2.) 6 I. Motion to Proceed IFP 7 A. Standard of Review 8 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 9 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 10 an additional hurdle.” Id. 11 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 12 installments” or “increments” as provided by 28 U.S.C. § 1915 (a)(3)(b), the Prison 13 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 14 proceed IFP in cases where the prisoner: 15 . . . has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was [16] dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 17 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. [19] 28 U.S.C. § 1915 (g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113 , 1116 n.1 (9th Cir. 2005). “Pursuant to 21 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 22 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 23 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 24 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 25 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 26 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 28 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 1 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 2 styles such dismissal as a denial of the prisoner’s application to file the action without 3 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 4 When courts “review a dismissal to determine whether it counts as a strike, the style of the 5 dismissal or the procedural posture is immaterial. Instead, the central question is whether 6 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El7 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 8 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 9 action,” however, courts may “assess a PLRA strike only when the case as a whole is 10 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147 , 1152 11 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 12 Cir. 2016)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915 (g); Cervantes, 493 F.3d at 1051 - 16 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 17 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 18 B. Discussion 19 The Court has reviewed Allen’s Complaint and finds it contains no “plausible 20 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 21 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915 (g)). Although Allen 22 alleges he suffered a seizure and injured his mouth and tooth because his gabapentin was 23 discontinued, exhibits attached to Allen’s Complaint indicate medical personnel at RJD are 24 aware of his seizure disorder and he is currently being treated for it with phenytoin, a 25 seizure medication. Ex. to Compl., ECF No. 1-2 at 1–3. Thus, there is nothing in the 26 Complaint to plausibly suggest Allen faced an “imminent danger of serious physical 27 injury” at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055–56 (plaintiff 28 must allege to face a real, proximate and/or ongoing danger at the time of filing); Murrell 1 v. Adams, No. CV 21-01633-PHX-DWL (DMF), 2021 WL 5230994 , at *2 (D. Ariz. Oct. 2 12, 2021) (concluding that a dispute over what kind of medication a prisoner should be 3 provided for pain management is not sufficient to establish imminent danger under 4 § 1915(g); Balzarini v. Lewis, No. 1:13-cv-00820-LJO-BAM (PC), 2015 WL 2345464 , *8 5 (E.D. Cal. May 14, 2015) (concluding that plaintiff's disagreement with prison medical 6 personnel about the course or adequacy of treatment he was receiving did not establish 7 imminent danger); Thomas v. Ellis, No. 12-cv-05563-CW(PR), 2015 WL 859071 , *3 (N.D. 8 Cal. Feb. 26, 2015) (allegations showing the plaintiff was receiving medical treatment for 9 his chronic pain, but that he disagreed with the type of medication prescribed were 10 insufficient to show imminent danger). 11 “Although prison can undoubtedly be a dangerous place, incarceration alone does 12 not satisfy the requirement of ‘imminent danger of serious physical injury’” for purposes 13 of § 1915(g). Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 14 144, 154 n.12 (3d Cir. 2017). “Indeed, if it did, every prisoner would be entitled to IFP 15 status and the exception would swallow the rule.” Id. (citation omitted); see also Patrick v. 16 Altshuler, No. 2:17-CV-1046 AC P, 2017 WL 4539273 , at *5 (E.D. Cal. Oct. 11, 2017) 17 (finding prisoner’s claims of “[f]ear with trust issues” and “painful” “[a]buse[s] of power” 18 were insufficient to demonstrate he was “under imminent danger of serious physical 19 injury” under § 1915(g)). 20 And while Defendants typically carry the initial burden to produce evidence 21 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119 , “in 22 some instances, the district court docket may be sufficient to show that a prior dismissal 23 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 24 1120. That is the case here. 25 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 26 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937 , *2 (S.D. Cal. Jan. 22, 2009) (citing 27 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 28 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 1 notice of proceedings in other courts, both within and without the federal judicial system, 2 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 3 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801 , 803 n.2 (9th 4 Cir. 2002)). 5 Based on a review of its own dockets and other court proceedings publicly available 6 on PACER, the Court finds that Plaintiff Michael Dewayne Allen, identified as CDCR 7 Inmate #T-55834, while incarcerated, has had three prior civil actions dismissed on the 8 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 9 may be granted. 10 They are: 11 1) Allen v. Social Security Administration, Civil Case No. 2:11-cv-04253UA-E (C.D. Cal. June 22, 2011) (Order Denying Leave to File Action Without [12] Prepayment of Full Filing Fee and dismissing Complaint as frivolous, 13 malicious, or for failing to state a claim upon which relief may be granted) (ECF No. 2 at 1) (strike one); [14] 15 2) Allen v. CSP – Los Angeles Count, et al., Civil Case No. 2:12-cv-08338DMG-E (C.D. Cal. Dec. 12, 2012) (Order Dismissing Complaint for failing [16] to state a claim) (ECF No. 7); and (C.D. Cal. May 1, 2013) (Order Accepting 17 Findings, Conclusions and Recommendations of United States Magistrate Judge and dismissing civil action based on Plaintiff’s failure to amend)1 (ECF [18] No. 12) (strike two); and [19] 3) Allen v. Masemeno, et al., Civil Case No. 2:12-cv-09981-DMG-E (C.D. [20] Cal. Nov. 26, 2013) (Order Dismissing First Amended Complaint for failing 21 to state a claim pursuant to 28 U.S.C. § 1915 (e)(2)(B)) (ECF No. 15); and (C. D. Cal. Feb. 20, 2014) (Order Accepting Findings, Conclusions and [22] Recommendations of United States Magistrate Judge and dismissing civil 23 action based on Plaintiff’s failure to amend) (ECF No. 19) (strike three). [25] 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court [26] dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave 27 to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). [28] 1 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 2 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 3 imminent danger of serious physical injury at the time he filed his Complaint, he is not 4 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055 ; 5 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915 (g) “does not prevent all 6 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 7 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 8 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 9 itself a matter of privilege and not right.”).2 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// [24] 2 In fact, Plaintiff has been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915 (g) in 25 this Court, as well as in the Eastern District of California, on at least four previous occasions. See, e.g., Allen v. Associate Warden, et al., S.D. Cal. Civil Case No. 3:20-cv26 02188-GPC-BLM (ECF No. 5); Allen v. Quillen, et al., S.D. Cal. Civil Case No. 3:20-cv27 02192-MMA-DEB (ECF No. 7); Allen v. Wells, et al., E.D. Cal. Civil Case No. 2:17-cv01793-MCE-EFB (ECF Nos. 11, 12, 13); and Allen v. Perez, 2:17-cv-01384-TLN-EFB [28] 1 ||. Conclusion and Orders 2 For the reasons discussed, the Court: 3 (1) DENIES Plaintiffs Motion to Proceed IFP (ECF No. 2) as barred by 28 4 ||U.S.C. § 1915(g); 5 (2) DISMISSES this civil action sua sponte without prejudice for failing to 6 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914 (a); 7 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 8 || to 28 U.S.C. § 1915 (a)(3); and 9 (4) DIRECTS the Clerk of the Court to close the file. 10 IT IS SO ORDERED. 11 Dated: September 9, 2022 72 12 Hon. athe Coke 13 United States District Judge [28] 7 ee