(PC) Fletcher v. Sherman, No. 1:2018cv01317 - Document 7 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's Application to Proceed in Forma Pauperis be Denied and that Plaintiff be Required to Pay the $400.00 Filing Fee in Full 2 ; ORDER Directing Clerk to Assign District Judge - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Erica P. Grosjean. New Case No. 1:18-cv-01317 LJO EPG (PC), signed by Magistrate Judge Erica P. Grosjean on 12/6/2018. (Hellings, J)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GREGORY L. FLETCHER, 10 Plaintiff, 11 12 v. STU SHERMAN, 13 Defendant. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND THAT PLAINTIFF BE REQUIRED TO PAY THE $400.00 FILING FEE IN FULL (ECF NO. 2) 14 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 15 16 Case No. 1:18-cv-01317-EPG (PC) I. 17 BACKGROUND Gregory Fletcher (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 application to proceed in forma pauperis. (ECF No. 2). On September 10, 2018, Plaintiff filed an 20 As the Court finds that Plaintiff had at least “three strikes” prior to filing this action and 21 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 22 action, the Court will recommend that Plaintiff’s application to proceed in forma pauperis be 23 denied and that Plaintiff be required to pay the $400 filing fee in full if he wants to proceed 24 with this action. 25 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 26 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 27 that “[i]n no event shall a prisoner bring a civil action… under this section if the prisoner has, 28 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 1 1 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 2 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 3 under imminent danger of serious physical injury.” 4 In determining whether a case counts as a “strike,” “the reviewing court looks to the 5 dismissing court's action and the reasons underlying it…. This means that the procedural 6 mechanism or Rule by which the dismissal is accomplished, while informative, is not 7 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 8 See also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (quoting Yourish v. Cal. 9 Amplifier, 191 F.3d 983, 986–87 (9th Cir. 1999) (alteration in original) (“no ‘particular 10 formalities are necessary for an order that serves as the basis of [an involuntary] dismissal.’”). 11 III. 12 13 14 PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS a. Strikes Plaintiff initiated this action on September 10, 2018. (ECF No. 1). The Court finds that, prior to this date, Plaintiff had at least four cases dismissed that count as “strikes.” 15 The Court takes judicial notice of: 1) Fletcher v. Johnson, E.D. CA, Case No. 2:16-cv- 16 02136, ECF Nos. 8 & 11; 2) Fletcher v. Erquiza, N.D. CA, Case No. 4:16-cv-04423, ECF No. 17 8; 3) Fletcher v. Sugura, N.D. CA, Case No. 4:16-cv-03920, ECF No. 6; and 4) Fletcher v. 18 Mendez, N.D. CA, Case No. 4:16-cv-03110, ECF Nos. 5 & 6. 19 Johnson and Mendez were dismissed because Plaintiff failed to file an amended 20 complaint after a screening order dismissed the operative complaint for failure to state a claim, 21 with leave to amend. Johnson, ECF Nos. 8 & 11; Mendez, ECF Nos. 5 & 6. These dismissals 22 count as “strikes.” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]e hold that 23 when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the 24 court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the 25 dismissal counts as a strike under § 1915(g).”). 26 27 28 Sugura was dismissed without prejudice for failure to state a claim under § 1983. Sugura, ECF No. 6. This dismissal counts as a “strike.” Section 1915(g). Erquiza was dismissed for failure to exhaust administrative remedies based on the face 2 1 of the complaint. Erquiza, ECF No. 8. A dismissal for failure to exhaust based on the face of 2 the complaint is a dismissal for failure to state a claim. El-Shaddai v. Zamora, 833 F.3d 1036, 3 1044 (9th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)) (alteration in original) 4 (“Notwithstanding the fact that failure to exhaust is an affirmative defense, a ‘complaint may 5 be subject to dismissal under Rule 12(b)(6) when an affirmative defense ... appears on its 6 face.’”). See also Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (“[I]n those rare cases 7 where a failure to exhaust is clear from the face of the complaint, a defendant may successfully 8 move to dismiss under Rule 12(b)(6) for failure to state a claim.”). Accordingly, this dismissal 9 counts as a “strike.” Section 1915(g). 10 11 Based on the foregoing, the Court finds that Plaintiff had at least four “strikes” prior to filling this lawsuit. 12 While Plaintiff has three “strikes” regardless of whether Johnson counts as a strike, 13 there is a separate issue regarding whether Johnson counts as a strike, which the Court 14 addresses below. 15 b. Williams v. King 16 In light of Williams v. King, 875 F.3d 500 (9th Cir. 2017), a new issue has arisen in 17 determining whether certain cases count as “strikes.” In Williams, the Court of Appeals for the 18 Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent of all plaintiffs and 19 defendants named in the complaint—irrespective of service of process—before jurisdiction 20 may vest in a magistrate judge to hear and decide a civil case that a district court would 21 otherwise hear.” Id. at 501. 22 In Johnson, a magistrate judge issued the final order dismissing the case based only on 23 the consent of Plaintiff. Under Williams, consent only by the plaintiff is insufficient to confer 24 jurisdiction on the magistrate judge. 25 recommends that Johnson count as a “strike” notwithstanding Williams. Hoffman v. Pulido, 26 E.D. CA, Case No. 1:18-cv-00209, ECF No. 10 (finding that magistrate judge dismissals issued 27 without the consent of all named defendants still count as “strikes” after Williams). After careful consideration of this issue, the Court 28 3 1 First of all, examining the jurisdiction of the dismissing court in prior cases goes 2 beyond the scope of review under § 1915(g). When determining whether a prior case counts as 3 a “strike,” “[t]he underlying principle is that we must decide whether the case was disposed of 4 because the complaint was frivolous, malicious, or failed to state a claim, regardless of how the 5 district court labels its decision.” El-Shaddai, 833 F.3d at 1044. See also Harris, 863 F.3d at 6 1142 (quoting El-Shaddai, 833 F.3d at 1042) (internal quotation marks omitted) (“[W]hen we 7 review a dismissal to determine whether it counts as a strike, the style of the dismissal or the 8 procedural posture is immaterial. Instead, the central question is whether the dismissal ‘rang 9 the PLRA bells of frivolous, malicious, or failure to state a claim.”). Neither the Ninth Circuit 10 nor the Supreme Court has instructed lower courts to examine the basis for jurisdiction before 11 deciding whether a case counts as a “strike.” Hoffman, ECF No. 10, p. 3 (“That is, there does 12 not appear to be a case that directs lower courts to also determine whether the ‘dismissing 13 court’ had jurisdiction to dismiss and create a strike.”). 14 Moreover, there are good reasons not to conduct such an inquiry. One is that parties are 15 generally not allowed to re-litigate issues they already had an opportunity to litigate. Taylor v. 16 Sturgell, 553 U.S. 880, 892 (2008) (alterations in original) (internal citations and quotation 17 marks omitted) (“The preclusive effect of a judgment is defined by claim preclusion and issue 18 preclusion, which are collectively referred to as res judicata…. By preclud[ing] parties from 19 contesting matters that they have had a full and fair opportunity to litigate, these two doctrines 20 protect against the expense and vexation attending multiple lawsuits, conserv[e] judicial 21 resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent 22 decisions.”). Johnson was dismissed because Plaintiff failed to file an amended complaint after 23 a screening order dismissed the operative complaint for failure to state a claim, with leave to 24 amend. Despite having the opportunity to do so, Plaintiff did not challenge the magistrate 25 judge’s jurisdiction, at the trial court or on appeal. 26 This is not to say that a plaintiff who believes a prior judgment is void is without 27 remedies. In fact, the Federal Rules of Civil Procedure expressly contemplate granting parties 28 relief from a final judgment when the final judgment is void. Fed. R. Civ. P. 60(b)(4). 4 1 However, this rule requires the party that wants to set aside the judgment to take action to set 2 aside the judgment. Fed. R. Civ. P. 60(b); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 3 2002). Plaintiff has not taken any action to set aside the judgment in Johnson, and collaterally 4 challenging the judgment in this case would be inappropriate. Nemaizer v. Baker, 793 F.2d 58, 5 65 (2d Cir. 1986) (citing Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 6 (1940)) (“[I]f the parties could have challenged the court's power to hear a case, then res 7 judicata principles serve to bar them from later challenging it collaterally.”). 8 Moreover, even if Plaintiff were allowed to challenge the judgment in Johnson via a 9 collateral attack in this action, it does not appear that the judgment in Johnson would be found 10 to be void. “A final judgment is ‘void’ for purposes of Rule 60(b)(4) only if the court that 11 considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties 12 to be bound, or acted in a manner inconsistent with due process of law.” United States v. 13 Berke, 170 F.3d 882, 883 (9th Cir. 1999).1 “Defective jurisdictional allegations are not fatal, 14 however. A judgment is only void where there is a ‘total want of jurisdiction’ as opposed to an 15 ‘error in the exercise of jurisdiction.’” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 16 (9th Cir. 2016) (quoting Watts v. Pinckney, 752 F.2d 406, 409 (9th Cir. 1985)). See also 17 United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (quoting Nemaizer, 793 18 F.2d at 65) (“Federal courts considering Rule 60(b)(4) motions that assert a judgment is void 19 because of a jurisdictional defect generally have reserved relief only for the exceptional case in 20 which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”). 21 The magistrate judge in Johnson had an arguable basis for exercising jurisdiction, and at 22 most made an error in exercising jurisdiction. The Ninth Circuit had not weighed in on the 23 issue, and its decision in Williams had not yet issued. Moreover, in 1995, the Court of Appeals 24 for the Fifth Circuit held that lack of consent from unserved defendants did not deprive the 25 magistrate judge of jurisdiction where the plaintiff consented, because the unserved defendants 26 27 1 28 The Rule 60(b)(4) standard is essentially the same standard that is used when a party attempts to collaterally attack a judgment. See, e.g., Baella-Silva v. Hulsey, 454 F.3d 5, 10 (1st Cir. 2006); Nemaizer, 793 F.2d at 65; Hoffman, ECF No. 10, p. 7. 5 1 were not parties under 28 U.S.C.A. § 636(c). Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 2 1995). 3 magistrate judge’s exercise of jurisdiction, and no conflicting precedent from the Ninth Circuit 4 or United States Supreme Court. Accordingly, there was precedent from a federal court of appeals supporting the 5 Moreover, “[a]n error in interpreting a statutory grant of jurisdiction is not… equivalent 6 to acting with total want of jurisdiction and does not render the judgment a complete nullity.” 7 Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984). In Williams, the Ninth Circuit held that the 8 magistrate judge made an error in interpreting § 636(c)(1) as providing magistrate judges with 9 jurisdiction where a plaintiff consents and the defendants are unserved, because the unserved 10 defendants are still parties. 875 F.3d at 504. As the magistrate judge in Johnson made the 11 same error in interpreting a statutory grant of jurisdiction, and as the interpretation was not 12 unreasonable (it was the same interpretation adopted by the Fifth Circuit), the judgment in 13 Johnson is not void. 14 Finally, the judge in Johnson was acting pursuant to a Local Rule that provided that 15 prisoner civil rights cases are treated as consent cases so long as all parties who have appeared 16 consented. See Local Rules, Appendix A(k)(4); E.D. Cal. General Order 467. This rule in 17 essence tracks the holding in Neals, and took effect on June 2, 2008 (E.D. Cal. General Order 18 467). As the order dismissing Johnson was entered on September 13, 2017 (Johnson, ECF No. 19 11), the rule had been in effect over nine years by the time the magistrate judge dismissed 20 Plaintiff’s case. By this time hundreds (if not thousands) of cases were decided by magistrate 21 judges in the Eastern District of California based on just a plaintiff’s consent (see Eastern 22 District of California 2017 Annual Report, p. 29). 23 Accordingly, the Court finds that, even after Williams, cases where a magistrate judge 24 issued an order dismissing a case without the consent of all named defendants can still count as 25 a “strike,” so long as the order has not been declared void in an appeal or other appropriate 26 challenge. 27 \\\ 28 \\\ 6 1 c. Imminent Danger 2 As Plaintiff has at least three prior cases that count as “strikes,” Plaintiff is precluded 3 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 4 imminent danger of serious physical injury. The availability of the imminent danger exception 5 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 6 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 7 of serious physical injury must be a real, present threat, not merely speculative or 8 hypothetical.” Blackman v. Mjening, No. 116CV01421LJOGSAPC, 2016 WL 5815905, at *1 9 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff must provide “specific 10 fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 11 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th 12 Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent danger are insufficient. 13 White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). See also Martin v. Shelton, 319 14 F.3d 1048, 1050 (8th Cir. 2003) (“[C]onclusory assertions” are “insufficient to invoke the 15 exception to § 1915(g)….”). The “imminent danger” exception is available “for genuine 16 emergencies,” where “time is pressing” and “a threat… is real and proximate.” Lewis v. 17 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 18 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 19 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 20 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 21 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 22 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 23 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 24 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 25 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 26 298–99 (2d Cir. 2009)). 27 28 Because Plaintiff is pro se, in making the imminent danger determination the Court must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 7 1 Plaintiff complains of not getting the treatment he wants for his chronic pain and not 2 being monitored on one occasion after he took blood pressure medications. The Court cannot 3 draw an inference that Plaintiff was in imminent danger at the time he filed this case based on 4 these allegations. 5 Chronic pain alone is not enough to support an inference of imminent danger. See, e.g., 6 Thompson v. Rissa, 2018 WL 2471450, at *2 (D. Haw. June 1, 2018) (collecting cases). 7 Accordingly, Plaintiff’s allegation of chronic pain is insufficient to support an inference of 8 imminent danger. 9 As to Plaintiff’s allegation of not being monitored when he took blood pressure 10 medication, this allegation cannot support an inference of imminent danger because Plaintiff 11 has only alleged that he was not monitored on one occasion, months before he filed the 12 complaint. There are no allegations that would suggest that Plaintiff is at risk of having this 13 happen again.2 As Plaintiff is a “three-striker” and was not is in imminent danger when he filed this 14 15 action, the Court will recommend denying Plaintiff’s application to proceed in forma pauperis. 16 IV. 17 18 CONCLUSION AND RECOMMENDATIONS The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this action. 19 Accordingly, it is HEREBY RECOMMENDED that: 20 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff=s application to proceed in forma pauperis 21 22 (ECF No. 2) be DENIED; and 2. Plaintiff be directed to pay the $400.00 filing fee in full if he wants to proceed with 23 this action. 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 26 27 28 2 Additionally, it is not entirely clear why Plaintiff believes he is at risk if he is not monitored when he takes the medication. Plaintiff alleges that if he does strenuous exercise before or after taking the medication he is at risk of dying, but he does not explain why he cannot simply refrain from strenuous exercise right before and right after taking the medication. 8 1 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 2 may file written objections with the Court. The document should be captioned “Objections to 3 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 4 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 5 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 6 (9th Cir. 1991)). 7 8 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case. 9 10 11 IT IS SO ORDERED. Dated: December 6, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9