YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff, a state prisoner and frequent litigant in federal court who is currently incarcerated at the Richard J. Donovan Correctional Facility ("RJDCF"), filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against prison officials at two different institutions: Pelican Bay State Prison ("PBSP") and the California Health Care Facility ("CHCF"). Magistrate Judge Donna M. Ryu granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP"). Thereafter, the action was reassigned to the undersigned judge, who dismissed all claims relating to his incarceration at CHCF without prejudice to him refiling them in a new civil rights action in the United States District Court for the Eastern District of California, dismissed as moot his claims for injunctive relief, served the claim of deliberate indifference in the complaint on Defendant, and dismissed all remaining claims.
The parties are presently before the Court on Defendant's motion to revoke Plaintiff's IFP status, pursuant to 28 U.S.C. § 1915(g), and to dismiss the action without prejudice. Dkt. 43. Defendant has also filed a Request for Judicial Notice. Dkt. 43-1. Plaintiff has filed an opposition, and Defendant has filed a reply. Dkts. 46, 47, 50. For the reasons stated below, the court GRANTS Defendant's motion to revoke Plaintiff's IFP status and to dismiss the action, GRANTS Defendant's request for judicial notice, and terminates all remaining pending motions.
On June 9, 2017, Plaintiff filed his complaint, alleging constitutional violations occurring at PBSP and CHCF, where he previously was incarcerated. Plaintiff sought monetary damages and injunctive relief.
As mentioned above, on August 23, 2017, Magistrate Judge Ryu granted Plaintiff's motion for leave to proceed IFP. Dkt. 9. Thereafter, this matter was reassigned to the undersigned judge, who issued an Order of Partial Dismissal and Service. Dkts. 14, 15. The following background is taken from the Court's Order of Partial Dismissal and Service, which states as follows:
Dkt. 15 at 4 (footnote and brackets added). In its screening order, the Court noted that Plaintiff's complaint arose from his treatment while incarcerated PBSP and CHCF, but that Plaintiff had been transferred to RJDCF (located in San Diego County). Upon its initial review of the complaint, the Court dismissed as moot Plaintiff's claims for injunctive relief based on his confinement at PSBP because Plaintiff was no longer incarcerated at PBSP. The Court found that Plaintiff stated a cognizable claim of deliberate indifference against Defendant Adam and "PBSP Doe . . . D.D.S." Plaintiff was given leave to identify the Doe Defendant, but to date he has not done so. The Court had warned Plaintiff that the failure to do so would result in the dismissal of Defendant "PBSP Doe . . . D.D.S." without prejudice to Plaintiff filing a new action against him or her.
As mentioned above, Defendant has filed a motion requesting for the Court to revoke Plaintiff's IFP status under 28 U.S.C. § 1915(g) and to dismiss the instant action. Plaintiff has filed an opposition, and Defendant has filed a reply. Dkts. 46, 47, 50.
The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. § 1915 "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 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).
Section 1915(g) is commonly referred to as the "three strikes rule." The three strikes rule "requires so-called `frequent filer' prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals." Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 2001).
For purposes of a dismissal that may be counted under section 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little weight or importance: having no basis in law or fact," and the word "malicious" refers to a case "filed with the `intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted) ("Andrews I"). Only cases within one of these three categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action under section 1915(g) should only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim." Id.
Andrews I requires that the prisoner be given notice of the potential applicability of section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id. A defendant seeking to challenge a prisoner's IFP status has the burden of producing evidence that allows the district court to conclude that the prisoner plaintiff has suffered at least three prior dismissals that count as strikes under section 1915(g). Id. at 1120. Once the defendants have met this initial burden, the burden shifts to the prisoner to show why a prior dismissal should not count as a strike, or why he is entitled to the imminent danger of serious physical injury exception. Id.
A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action. See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming district court's denial of IFP status and dismissing complaint without prejudice under section 1915(g)).
At the time Plaintiff was granted leave to proceed IFP, Magistrate Judge Ryu and the undersigned judge was unaware of the basis of the dismissals of his cases in other districts, i.e., the United States District Court for the Eastern District of California. However, Defendant points out that a review of the dismissal orders in Plaintiff's prior prisoner actions reveals that he has had multiple cases dismissed on the ground that they were frivolous or failed to state a claim upon which relief may be granted. This Court GRANTS Defendant's request for judicial notice of the court documents provided in support of the motion to dismiss on the grounds that Plaintiff is barred from proceeding IFP under 28 U.S.C. § 1915(g).
Although Defendant has listed multiple dismissals, only three prior dismissals need qualify under section 1915(g). This Court must review at least three dismissals to determine whether they qualify as strikes under section 1915(g). See Andrews I, 398 F.3d at 1121. Plaintiff's dismissals in Case Nos. 1:08-cv-0124-LJO-GSA PC, 1:08-cv-00179-OWW-MJS PC, 2:08-cv-00733-HWG, 1:13-cv-00483-MJS, and 2:15-cv-02271 KJM-EFB, which were all entered before the instant action was brought by Plaintiff on June 9, 2017, may be counted as dismissals for purposes of section 1915(g). As further explained below, these dismissals all qualify as "strikes" under section 1915(g). See id.
In McElroy v. Gebmeddin, et al., No. 1:08-cv-0124-LJO-GSA PC, Plaintiff consented to magistrate judge jurisdiction. Req. Judicial Not., Ex. B. The magistrate judge of the Eastern District screened Plaintiff's complaint under 28 U.S.C. § 1915A and, on November 4, 2008, issued Findings and Recommendations, in which the magistrate judge recommended that this action be dismissed for failure to state a claim upon which relief may be granted. Id. On December 11, 2008, the district judge of the Eastern District issued an Order adopting in full the November 4, 2008 Findings and Recommendations issued by the magistrate judge. Id. A search of the Court's Public Access to Court Electronic Records ("PACER") system indicates that the judgment was entered on December 11, 2008. Plaintiff fails to provide persuasive evidence that rebuts the showing by Defendant that failure to state a claim is a qualifying reason for a strike under section 1915(g). Therefore, the Court finds that Defendant has met the burden of establishing that Case No. 1:08-cv-00124-LJO-GSA PC was dismissed for a qualifying reason under section 1915(g), and therefore counts as a strike. See Andrews I, 398 F.3d at 1120.
In McElroy v. Schultz, et al., No. 1:08-cv-00179-OWW-MJS PC, Plaintiff consented to magistrate judge jurisdiction. Req. Judicial Not., Ex. C. The magistrate judge of the Eastern District screened Plaintiff's first amended complaint under 28 U.S.C. § 1915A and, on February 25, 2010, issued an order dismissing the first amended complaint with leave to file a second amended complaint correcting certain deficiencies. Id. Plaintiff did not file a second amended complaint. Id. Thus, on March 31, 2010, the magistrate judge issued Findings and Recommendations, in which the magistrate judge recommended that the action be dismissed for failure to state a claim upon which relief may be granted. Id. On April 30, 2010, the district judge of the Eastern District issued an Order adopting in full the Findings and Recommendations issued by the magistrate judge on March 31, 2010. Id. Judgment was entered on April 30, 2010. Id. Plaintiff fails to provide persuasive evidence that rebuts the showing by Defendant that failure to state a claim is a qualifying reason for a strike under section 1915(g). Therefore, the Court finds that Defendant has met the burden of establishing that Case No. 1:08-cv-00179-OWW-MJS PC was dismissed for a qualifying reason under section 1915(g), and therefore counts as a strike. See Andrews I, 398 F.3d at 1120.
In McElroy v. Cal. Dep't of Corr., No. 2:08-cv-00733-HWG, the visiting district judge of the Eastern District screened and dismissed the complaint on April 16, 2009 with leave to amend to cure certain deficiencies no later than May 18, 2009. Req. Judicial Not., Ex. D. Plaintiff failed to file an amended complaint by the deadline, and the visiting district judge dismissed the action for failure to state a claim on June 3, 2009. Id. Judgment was entered on June 3, 2009. Id. As mentioned, Defendant asserts that failure to state a claim is a qualifying reason for a strike under section 1915(g). Again, Plaintiff did not challenge this assertion. Therefore, Defendant has met the burden of establishing that Case No. 2:08-cv-00733-HWG was dismissed for a qualifying reason under section 1915(g), and therefore counts as a strike. See Andrews I, 398 F.3d at 1120.
In McElroy v. Institutional Head Ground, et al., No. 1:13-cv-00483-MJS (E.D. Cal. Nov. 1, 2013, Plaintiff consented to magistrate judge jurisdiction. Req. Judicial Not., Ex. E. The magistrate judge of the Eastern District screened and dismissed the first amended complaint for failure to state a claim upon which relief can be granted on November 1, 2013. Id. Judgment was entered on November 1, 2013. Id. Again, Plaintiff did not challenge Defendant's assertion that failure to state a claim is a qualifying reason for a strike under section 1915(g). Therefore, Defendant has met the burden of establishing that Case No. 1:13-cv-00483-MJS was dismissed for a qualifying reason under section 1915(g), and therefore counts as a strike. See Andrews I, 398 F.3d at 1120.
In McElroy v. CDC, Case No. 2:15-cv-02271 KJM-EFB, Plaintiff consented to magistrate judge jurisdiction. Req. Judicial Not., Ex. F. The magistrate judge of the Eastern District screened Plaintiff's complaint under 28 U.S.C. § 1915A and, on February 6, 2017, issued an order dismissing the complaint with leave to file an amended complaint correcting certain deficiencies because the complaint failed to state a claim for relief. Id. Even after being granted an extension of time to do so, Plaintiff did not file an amended complaint. Id. Thus, on April 3, 2017, the magistrate judge issued Findings and Recommendations, in which the magistrate recommended that this action be dismissed for failure to prosecute without prejudice for failure to file an amended complaint. Id. On June 21, 2017, the district judge of the Eastern District issued an Order adopting in full the Findings and Recommendations issued by the magistrate judge on April 3, 2017. Id. A search of the Court's PACER system shows that the judgment was entered on June 21, 2017. A dismissal for failure to prosecute an action constitutes a strike when it is based upon the plaintiff's failure to file an amended complaint after the original complaint is dismissed for failure to state a claim. See, e.g., Peralta v. Martel, 2010 WL 2629060, *5 (E.D. Cal. 2010) (dismissal for failure to prosecute without prejudice for failure to file an amended complaint constituted a "strike" under section 1915(g) where it was "clear from the district court's reasoning that failure to state a claim was a fully sufficient condition for dismissing" the complaint). Plaintiff fails to provide persuasive evidence that rebuts the showing by Defendant that failure to state a claim is a qualifying reason for a strike under section 1915(g). Therefore, the Court finds that Defendant has met the burden of establishing that Case No. 2:15-cv-02271 KJM-EFB was dismissed for a qualifying reason under section 1915(g), and therefore counts as a strike. See Andrews I, 398 F.3d at 1120.
In sum, Plaintiff's five aforementioned dismissals constitute "strikes" under section 1915(g). Thus, Plaintiff's IFP status must be revoked unless he can show that he is entitled to the imminent danger of serious physical injury exception under section 1915(g).
A plaintiff barred from bringing an action IFP because he has three strikes may still proceed without prepaying court fees if he can show he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The availability of the exception turns on the "conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time." Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("Andrews II"). As this is merely a "threshold procedural" question, the Ninth Circuit has indicated that district courts should not conduct an overly detailed inquiry into whether a particular danger is serious enough under the serious physical injury prong. Id. at 1055. Rather, "the exception applies if the complaint makes a plausible allegation that the prisoner faced `imminent danger of serious physical injury' at the time of filing." Id. In order to satisfy the imminence prong, the prisoner must allege that the danger is ongoing. See id. at 1056-57 (prisoner who alleges that prison officials continue with practice that has injured him satisfies ongoing danger standard and meets imminence prong of three-strike exception).
A district court should liberally construe the allegations in a complaint filed by a pro se prisoner facing a section 1915(g) bar. See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002) (liberally construing allegations in complaint for initial determination of whether prisoner is under imminent danger of serious physical injury). It is sufficient if any part of the complaint plausibly alleges that the prisoner is in imminent danger of serious physical injury at the time of filing. Andrews II, 493 F.3d at 1053.
Here, Plaintiff makes no plausible allegation that he faced an imminent danger of serious physical injury at the time he filed his complaint. First, the Court notes that Plaintiff was no longer housed at PBSP on May 31, 2017, the date he signed his complaint. See Dkt. 1 at 1. Instead, he indicated that he had then been transferred to CHCF. Id. As noted earlier, the Court found that Plaintiff stated one claim for relief under section 1983: a claim for deliberate indifference in violation of his Eighth Amendment rights against Defendant. Dkt. 15 at 3-4. Even when liberally construed, it cannot be said that Defendant's alleged deliberate indifference to Plaintiff's dental needs, including chronic oral/dental problems such as cavities and inflammation of the gums and tongue, while housed at PBSP placed Plaintiff under imminent danger of serious physical injury at the time of filing. See Dkt. 1. The incidents involving Defendant alleged in Plaintiff's complaint took place when he was incarcerated at PBSP from around September 2015-January 2016 and in July 2016, and thus any alleged constitutional violations by Defendant ended before the filing of this lawsuit in June of 2017. See id. at 4-10. Moreover, again, Plaintiff had already been transferred to CHCF when he filed the complaint, which is a different institution from PBSP—where the alleged incidents of constitutional violations occurred and where Defendant is employed. Id. at 1. Thus, Plaintiff has not shown that he is entitled to the imminent danger exception under section 1915(g) to avoid dismissal without prejudice.
Plaintiff's IFP status is therefore revoked. See Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (revoking IFP status on appeal on three strikes grounds); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 461, 465 (5th Cir. 1998) (district court correctly revoked IFP upon discovering on remand that plaintiff had five prior strikes). Accordingly, the Court GRANTS Defendant's motion to revoke Plaintiff's IFP status, and to dismiss the action without prejudice. Dkt. 43.
For the reasons outlined above, the Court rules as follows:
1. This Court GRANTS Defendant's request for judicial notice of the court documents provided in support of the motion to dismiss on the grounds that Plaintiff is barred from proceeding IFP under 28 U.S.C. § 1915(g). Dkt. 43-1.
2. The Court GRANTS Defendant's motion to revoke Plaintiff's IFP status, pursuant to 28 U.S.C. § 1915(g), and to dismiss the action without prejudice. Dkt. 43. Leave to proceed IFP is REVOKED, and the portion of Magistrate Judge Ryu's August 23, 2017 Order granting Plaintiff IFP status (dkt. 9) is VACATED.
3. This case is DISMISSED without prejudice to Plaintiff's filing a motion to reopen no later than
4. The Court notes that the parties have filed many other pending motions, which should now be terminated. Defendant points out and the Court agrees that some of Plaintiff's motions should be terminated as redundant and unnecessary, including: (1) his recent request for a preliminary injunction and a Temporary Restraining Order ("TRO") (dkt. 56) because it seeks relief that the Court has already denied in its Order Denying Plaintiff's Second Request for Preliminary Injunction and TRO (see dkt. 55); and (2) his most recent request for appointment of counsel (dkt. 57) as it is duplicative of his previous similar requests, which have all been denied (see dkts. 9, 26, 49). All remaining pending motions (dkts. 48, 53, 58, 59, 60, 63, 64) are terminated as moot. If this action is reopened, the parties may re-file these pending motions.
5. The Clerk of the Court shall terminate all pending motions and close the case.
6. This Order terminates Docket Nos. 43, 48, 53, 56, 57, 58, 59, 60, 63, and 64.
