Claiborne v. Blauser et al
Filing
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ORDER signed by Senior Judge Lawrence K. Karlton on 6/24/11, DECLINING to adopt 13 the magistrate judge's Findings and Recommenations. The magistrate judge shall resume consideration of plaintiff's application to proceed in forma pauperis consistently with this order. (Kastilahn, A) (Main Document 16 replaced on 6/27/2011) (Manzer, C).
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DENNIS G. CLAIBORNE,
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NO. CIV. S-10-2427 LKK EFB P
Plaintiff,
v.
O R D E R
BLAUSER, et al ,
Defendants.
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I. INTRODUCTION
Plaintiff, a state prisoner proceeding pro se, has filed
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this civil rights action seeking relief under 42 U.S.C. § 1983.
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Plaintiff has filed a motion to proceed in forma pauperis.
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matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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The
On April 15, 2011, the magistrate judge filed Findings and
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Recommendations which were served on plaintiff and which
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contained notice to plaintiff that any objections to the
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Findings and Recommendations were to be filed within fourteen
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days.1
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application to proceed in forma pauperis on the grounds that
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pursuant to 28 U.S.C. § 1915(g): (i) the plaintiff has filed
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three or more prior suits constituting “strikes;” and (ii) he
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does not qualify for the“imminent danger” exception to the
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three-strike rule.
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to the Findings and Recommendations.
The magistrate judge recommends denying plaintiff's
On April 9, 2010, plaintiff filed objections
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II. ANALYSIS
A.
Standard of Review
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When reviewing the Findings and Recommendations of the
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magistrate judge, the district court is instructed to “make a de
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novo determination of those portions of the report or specified
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proposed findings or recommendations to which objection is
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made.”
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930, 932 (9th Cir. 2009).
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reviewing court ‘do[es] not defer to the lower court's ruling
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but freely consider[s] the matter anew, as if no decision had
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been rendered below.’” Id, at 933, quoting United States v.
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Silverman, 861 F.2d 571, 576 (9th Cir.1988).
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that any findings of fact not objected to are correct. See Orand
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v. United States, 602 F.2d 207, 208 (9th Cir. 1979).
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magistrate judge's conclusions of law are also reviewed de novo.
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See Thomas v. Arn, 474 U.S. 140, 150 (1985).
28 U.S.C. § 636(b)(1)(C); Dawson v. Marshall, 561 F.3d
“De novo review means that the
The court presumes
The
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Local R. 303(b) (14 days to seek reconsideration).
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B.
Three Strikes
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Plaintiff cannot be granted in forma pauperis status here
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if on three or more prior occasions, he brought a federal case
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“that was dismissed on the grounds that it is frivolous,
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malicious, or fails to state a claim upon which relief may be
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granted, unless the prisoner is under imminent danger of serious
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physical injury.”
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562 U.S. ___, 131 S. Ct. 1289, 1299-1300 (2011) (noting
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Congressional controls placed on prisoner lawsuits).
28 U.S.C. § 1915(g); Skinner v. Switzer,
The
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magistrate found that “on at least three prior occasions,
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plaintiff brought actions while incarcerated that were dismissed
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as frivolous, malicious, or for failure to state a claim upon
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which relief may be granted.”
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factual finding, and accordingly this court will presume that it
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is correct.
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C.
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Plaintiff does not object to this
Imminent Danger.
After reviewing the allegations in two of plaintiff’s
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submissions – the Complaint and the request for a Temporary
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Restraining Order – the magistrate judge identified several
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grounds upon which plaintiff might base a claim of “imminent
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danger.”
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magistrate judge relied on two: (i) defendant’s ordering
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plaintiff, pursuant to policy, to “cuff up”2 after plaintiff had
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refused to obey defendant’s orders; and (ii) an episode in which
In making the imminent danger determination, the
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Apparently, this means an order to put on handcuffs.
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plaintiff was dragged and beaten by defendant.
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judge concluded that the beating was “an isolated incident,” and
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that the “cuff up” policy did not present an imminent danger to
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plaintiff.
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The magistrate
Plaintiff objected to the Findings and Recommendations on
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two grounds.
First, he disagreed with the magistrate judge’s
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“assumption” that the beating he allegedly suffered was an
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isolated incident.
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judge’s characterization of his “imminent danger” claim.
Second, he disagreed with the magistrate
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1.
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A plaintiff who is otherwise barred from filing in forma
Standard for Imminent Danger.
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pauperis because he has three strikes under Section 1915(g), may
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nevertheless proceed if he satisfies the “imminent danger”
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exception.
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complaint makes a plausible allegation that the prisoner faced
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‘imminent danger of serious physical injury’ at the time of
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filing.”
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Cir. 2007).
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2.
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15 U.S.C. § 1915(g).
“The exception applies if the
Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th
Plaintiff Sufficiently Alleged “Imminent Danger.”
a.
Handcuffing behind the back
Plaintiff alleges that in moving “mobility-impaired”
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inmates such as himself by foot, it is the practice of the
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defendants: (i) to restrain such inmates by handcuffing them
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behind their backs, despite what he says is a written policy
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prohibiting it; and (ii) to not permit such inmates to use their
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crutches or canes.
Plaintiff described an incident during which
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this practice was allegedly applied, and which directly resulted
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in injury to him.
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unable to support himself in the condition imposed by this
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practice, and as a result defendants dragged him to his
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destination, putting his knee replacement at risk and causing
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considerable pain.
Specifically, according to plaintiff, he was
As the basis for his claim that it is defendants’ practice
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to transport plaintiff in this manner, plaintiff alleges that
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during the incident where this alleged policy was applied,
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defendants “said that it was the Procedure of the CDCR.”
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alleged admission by defendants will suffice to show that the
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conduct described was a policy or practice.
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practice resulted, at least on this occasion, in the plaintiff’s
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falling and endangering his knee replacement, plaintiff has
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sufficiently alleged “imminent danger.”
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b.
This
Since the alleged
The beating
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Plaintiff also alleges that during the incident described
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above, his inability to support himself while being dragged to
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his destination caused his body to roll and jerk unpredictably,
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and those motions were interpreted by defendants as an attack.
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According to plaintiff, this perceived attack prompted
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defendants to beat him in a brutal manner.
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is to be believed – and the court makes no finding that the
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allegations are or are not to be believed – then defendants
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handcuffed plaintiff behind his back, dragged him over rough and
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Thus, if plaintiff
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uneven terrain, ignored his cries to protect his knee
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replacement, and dealt him a brutal beating.
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As the basis for his claim that it is defendants’ practice
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to beat him, plaintiff alleges that a California Senate report
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identifies the High Desert State Prison staff as “cruel and
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brutal overseers.”
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Californa Senate Report will not suffice to show that there was
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a pattern or practice of beating him.
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plausibly allege a recurring practice – forcing mobility
However, plaintiff’s reference to a
He does, however,
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impaired inmates, including himself, to walk with hands cuffed
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behind them and without their crutches and canes – that
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triggered the alleged beating.
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Section 1915(g) does not require that plaintiff be beaten
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over and over again before he qualifies to file a civil rights
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complaint without paying the filing fee.
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1056 (rejecting a standard under which plaintiff would always be
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either too early or too late to claim "imminent danger").
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Accordingly, plaintiff’s allegations of a pattern and practice
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that triggered a beating, suffices for Section 1915(g),
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especially given the court’s finding above, that the pattern and
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practice itself – even without the beating alleged to be
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triggered by it – was sufficient to show “imminent danger.”
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Andrews, 493 F.3d at
III. CONCLUSION
Plaintiff has thus plausibly alleged an “ongoing danger,”
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namely a policy or practice of defendants that results in injury
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or risk of injury to plaintiff whenever it is followed.
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See
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Andrews, 493 F.2d at 1056 (plaintiff is only required to
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“‘allege[ ] an ongoing danger’”), quoting Ashley v. Dilworth,
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147 F.3d 715, 717 (8th Cir. 1998).
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used every time plaintiff is moved from one location to another.
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The court accordingly DECLINES to adopt the magistrate
This alleged policy would be
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judge’s April 15, 2011 Findings and Recommendations.
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magistrate judge shall resume consideration of plaintiff’s
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application to proceed in forma pauperis consistently with this
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order.
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IT IS SO ORDERED.
DATED: June 24, 2011
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The
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