(PC) Stribling v. Machado et al, No. 1:2018cv01061 - Document 8 (E.D. Cal. 2018)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Motion for Leave to Proceed In Forma Pauperis be DENIED and Plaintiff be Ordered to Pay the $400.00 F iling Fee in Full to Proceed With This Action re 1 Complaint signed by Magistrate Judge Barbara A. McAuliffe on 8/9/2018. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Barbara A. McAuliffe. The new case number is 1:18-cv-01061-DAD-BAM (PC). Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON LAMONT STRIBLING, 12 Plaintiff, 13 14 v. MACHADO, et al., 15 Defendants. 16 Case No. 1:18-cv-01061-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Aaron Lamont Stribling (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 2, 2018, 21 in the United States District Court for the Central District of California. (ECF No. 1.) The action 22 was transferred to the Eastern District on August 8, 2018. (ECF No. 4.) Currently before the 23 Court is Plaintiff’s motion for leave to proceed in forma pauperis. (ECF No. 2.) 24 I. 25 Motion for Leave to Proceed In Forma Pauperis Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 26 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 27 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 28 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 1 1 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 2 physical injury.”1 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 3 4 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 5 1053−55 (9th Cir. 2007). Plaintiff alleges that a “whole multitude” of violations occurred, but 6 primarily alleges violations of his Eighth Amendment rights, specifically failure to protect, 7 deliberate indifference, and cruel and unusual punishment. (ECF No. 1, p. 4.) 8 Plaintiff alleges that beginning on June 21, 2018, he began to vocalize that he feared for 9 his life, because all correctional officers and correctional staff had successfully cut off his lines of 10 communication with his family, by restricting visits, calls, and mail. Plaintiff alleges that he went 11 to the crisis treatment center on June 21, 2018 and spoke with Psychologist Machado and 12 Psychiatrist Wong, but feels that they denied him mental health services by leaving him feeling 13 suicidal because he was still being controlled by the people he feared. Plaintiff goes on to state 14 that on July 10, 2018, he was assaulted by other inmates while Officer Wright stood and watched 15 but took no action. Plaintiff alleges that this assault was a plot by correctional officers to have 16 Plaintiff attacked. Documents attached to Plaintiff’s complaint indicate that as of June 21, 2018, Plaintiff 17 18 was a participant in the Mental Health Services Delivery System at the EOP level of care, (ECF 19 No. 1, p. 8), and that on July 11, 2018, Plaintiff was participating at the CCCMS level of care, 20 (ECF No. 1, p. 11). Further, following the inmate assault on July 10, 2018, Plaintiff was housed 21 in Administrative Segregation due to “Enemy Concerns.” (ECF No. 1, p. 11.) Plaintiff appears 22 23 24 25 26 1 The Court takes judicial notice of the following United States District Court cases: (1) Stribling v. Defazio, Case No. 2:12-cv-02729-JAM-EFB (E.D. Cal.) (dismissed on September 5, 2013 for failure to state a claim); (2) Stribling v. Tobias, Case No. 2:16-cv-00399-MCE-EFB (E.D. Cal.) (dismissed on September 2, 2016 for failure to state a claim); and (3) Stribling v. Chooljian, Case No. 2:18-cv-00266-CAS-FFM (C.D. Cal.) (dismissed on January 11, 2018 as frivolous, malicious, or fails to state a claim upon which relief may be granted). The Court also takes judicial notice of the following United States Court of Appeals case: Stribling v. Chooljian, Case No. 18-55186 (9th Cir.) (dismissed on July 11, 2018 as frivolous). 2 27 28 It appears that at the time of filing, the complaint was erroneously split between ECF No. 1 (Civil Rights Complaint) and ECF No. 2 (Application to Proceed Without Prepayment of Filing Fees). The Court has considered the entirety of both documents in reaching these findings and recommendations. The Court expresses no opinion on the merits of Plaintiff’s claims. 2 1 to argue in his complaint that his depression will continue unless he is hospitalized and placed at a 2 “real mental institute” that will keep him safe from correctional staff. (ECF No. 2, p. 14.) 3 While the Court takes Plaintiff’s well-pleaded factual allegations as true, the Court is not 4 required to accept Plaintiff’s conclusory statement that the only treatment that would prevent his 5 suicide or continuing depression is his transfer to a mental institution that will keep him separate 6 from prison staff. Plaintiff has alleged that he was seen by mental health professionals during the 7 time period at issue and that he is participating in mental health services at various levels of 8 treatment. Further, it appears that Plaintiff remains in administrative segregation for his own 9 protection. On that basis, the Court finds that Plaintiff’s vague and conclusory allegations of 10 possible future harm, or his generalized fears of all correctional staff, are insufficient to trigger 11 the “imminent danger of serious physical injury” exception to dismissal under § 1915(g). 12 Therefore, Plaintiff has not satisfied the exception from the three strikes bar under 28 U.S.C. 13 § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action. 14 II. 15 16 Conclusion and Recommendations Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action. 17 Further, it is HEREBY RECOMMENDED that: 18 1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 19 20 21 U.S.C. § 1915(g); and 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this action. 22 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 26 file written objections with the court. The document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 28 objections within the specified time may result in the waiver of the “right to challenge the 3 1 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara August 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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