(PC) Bradford v. Usher, et al., No. 1:2017cv01128 - Document 22 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending to Revoke Plaintiff's in Forma Pauperis Status, and to Direct Plaintiff to Pay Filing Fee for This Action, signed by Magistrate Judge Stanley A. Boone on 12/5/2018: 30-Day Deadline. (Hellings, J)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 RAYMOND ALFORD BRADFORD, 10 Plaintiff, 11 v. 12 C. OGBUEHI, et al. 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01128-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS, AND TO DIRECT PLAINTIFF TO PAY FILING FEE FOR THIS ACTION THIRTY-DAY DEADLINE 16 I. 17 INTRODUCTION 18 19 Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 On January 18, 2018, the Court granted Plaintiff’s motion to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915(a), and screened his complaint. (ECF No. 9.) Plaintiff was found not to 22 state any cognizable claim, but was granted leave to amend his complaint within thirty days. (Id. at 23 11.) Plaintiff filed a first amended complaint on April 9, 2018, alleging exposure to Valley Fever, 24 inadequate medical care, and an episode of Deep Vein Thrombosis (DVT) that was not adequately 25 treated. (Doc. No. 13.) 26 On September 21, 2018, following screening of Plaintiff’s first amended complaint, the Court 27 issued findings and recommendations recommending that this action proceed only against Defendants 28 Usher, Rimbach, German, Ulit, Spaeth, and Sao, in their individual capacities, for violation of the 1 1 Eighth Amendment, and that all other claims and defendants be dismissed. (Doc. No. 19.) Plaintiff 2 was permitted thirty days to file objections. (Id. at 7-8.) Plaintiff timely filed objections on October 3 18, 2018. (Doc. No. 20.) 4 On December 4, 2018, the findings and recommendations were adopted in full. (Doc. No. 21.) 5 This matter now proceeds on Plaintiff’s first amended complaint against Defendants Usher, Rimbach, 6 German, Ulit, Spaeth, and Sao for violation of the Eighth Amendment, based on Plaintiff’s allegations 7 related to Valley Fever. (Id. at 3.) All other claims and defendants were dismissed, and this matter 8 was referred back to the undersigned for further proceedings. (Id.) 9 II. 10 DISCUSSION Given the status of this case, the Court finds it necessary to review the grant of in forma 11 12 pauperis status to Plaintiff in this case under 28 U.S.C. § 1915(g). Earlier in this action, the 13 undersigned found that Plaintiff is subject to Section 1915(g) of the Prison Litigation Reform Act of 14 1995 (PLRA), because on three or more occasions he has filed actions that have been dismissed as 15 frivolous, malicious, or for the failure to state a claim upon which relief may be granted.1 16 A prisoner subject to Section 1915(g) cannot bring another action in forma pauperis “unless 17 the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To meet that 18 exception, a plaintiff to show that he is under an ongoing, imminent danger. Andrews v. Cervantes, 19 493 F.3d 1047, 1056–57 (9th Cir. 2007). “[Q]ualifying prisoners can file their entire complaint IFP; 20 the exception does not operate on a claim-by-claim basis or apply to only certain types of relief.” Id. 21 at 1052. However, “the exception applies if the complaint makes a plausible allegation that the 22 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” Id. at 1055. 23 Here, in Plaintiff’s original complaint, he appeared to plead allegations that he was suffering 24 from DVT and ulcers up until the time that this action was filed, and that he was then-facing a lack of 25 1 26 27 28 The Court takes judicial notice of the following cases: Bradford v. White, et al., No. 2:98-cv-00180FCD-JFM-PC (dismissed June 3, 1999 as frivolous); Bradford v. Terhune, et al., No. 1:04-cv-05496AWI-DLB-PC (dismissed Oct. 21, 2004 for the failure to state a claim); Bradford v. Grannis, No. 2:05-cv-00862-FCD-DAD-PC (dismissed Sept. 30, 2007 as frivolous and for the failure to state a claim); and Bradford v. Terhune, et al., No. 1:04-cv-05261-LJO-SMS-PC (dismissed May 12, 2008 for the failure to state a claim). 2 1 treatment that posed a serious risk to his health. (ECF No. 9, at 2-3.) This appeared likely sufficient 2 to meet the imminent danger exception, but Plaintiff did not state a cognizable claim. As noted above, 3 Plaintiff was granted leave to amend to attempt to state a claim. He has failed to do so, and those 4 allegations were dismissed from this action. (ECF No. 21, at 2-3.) 5 Plaintiff’s now-operative first amended complaint added some clarification to his allegations, 6 and as noted above, this action only proceeds on those allegations related to Valley Fever. 7 Specifically, this case concerns Plaintiff’s allegations that he was identified as a high medical risk with 8 specialized outpatient (“SOP”) and Cocci Area 2 ineligible. Nevertheless, Defendant Usher and 9 Defendant Rimbach knowingly subjected Plaintiff to Cocci exposure in his housing conditions. On or 10 about September 6, 2015, Plaintiff complained to Defendant German, an RN, about his flu-like 11 symptoms, chest pains, and severe weight loss, but was not given any treatment. Defendant German 12 also failed to process Plaintiff’s sick call slips to see the doctor. Defendants Ulit, Spaeth and Sao also 13 denied Plaintiff’s emergency medical appeals and 602 appeals requesting treatment for severe weight 14 loss, chest pain, and for preventative measures to prevent Valley Fever. 15 submitting several additional sick call slips that Plaintiff was finally taken to a hospital on November 16 16, 2015, and was diagnosed with Valley Fever and pneumonia in his lungs. Plaintiff has since been 17 transferred away from Kern Valley State Prison, where the events at issue occurred. (See ECF Nos. 6, 18 16.) He is now housed at California State Prison, Los Angeles County. It was not until after 19 Thus, this case concerns past events that occurred much before Plaintiff filed this action on 20 August 22, 2017, and before he filed his current first amended complaint on April 9, 2018. It is not 21 plausible from these allegations to determine that Plaintiff faced an imminent danger of serious 22 physical injury at the times that he filed this action or filed his operative pleading. 23 Accordingly, the imminent danger exception to § 1915(g)’s three-strikes provision does not 24 apply here. See Andrews, 493 F.3d at 1055; see also Medberry v. Butler, 185 F.3d 1189, 1193 (11th 25 Cir. 1999) (finding failure to protect allegations against prison officials who put an inmate convicted 26 of sexual battery in general population failed to meet imminent danger standard because the threat had 27 ceased prior to filing the complaint); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) 28 (“Allegations that the prisoner faced imminent danger in the past are insufficient to trigger this 3 1 exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan.”); 2 Winfield v. Schwarzenegger, No. 2:09-cv-0636-KJN-P, 2010 WL 3397397, at *2 (E.D. Cal. Aug.27, 3 2010) (“At the time of filing the operative . . . complaint, plaintiff was incarcerated at [CSP- 4 Sacramento]; thus, he is not facing imminent danger of serious physical injury based on allegations 5 against defendant . . . at San Quentin State Prison.”). Therefore, the Court recommends that Plaintiff’s 6 in forma pauperis status be revoked, and that he be required to pay the filing fee to proceed in this 7 action. 8 III. 9 RECOMMENDATION For the reasons explained above, it is HEREBY RECOMMENDED that Plaintiff’s in forma 10 11 pauperis status be revoked, and that he be required to pay the filing fee to proceed in this action. 12 These findings and recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within thirty (30) days 14 after being served with these Finding and Recommendations, Plaintiff may file written objections with 15 the Court. The document should be captioned “Objections to Findings and Recommendations.” 16 Plaintiff is advised that failure to file objections within the specified time may result in the waiver of 17 rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 18 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: 22 December 5, 2018 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4