(PC) Gary Fisher v. OPS of CDCR, No. 2:2014cv01085 - Document 13 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/25/2014 RECOMMENDING that plaintiff's 9 request to proceed IFP be denied and this action be dismissed without prejudice to re-filing upon pre-payment of the $400.00 filing fee. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)
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(PC) Gary Fisher v. OPS of CDCR Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY FISHER, 12 13 14 15 No. 2:14-cv-1085-MCE-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS DIRECTOR OF OPS OF CDCR, Defendant. 16 17 Plaintiff Gary Fisher, also known as Gary Barger, is a state prisoner proceeding without 18 counsel in an action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma 19 pauperis. See 28 U.S.C. § 1915(a). For the reasons explained below, the court finds that plaintiff 20 has not demonstrated he is eligible to proceed in forma pauperis. 21 22 23 24 25 A prisoner may not proceed in forma pauperis: 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. 26 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 27 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 28 state a claim upon which relief may be granted. See (1) Fisher v. McGee, 2:13-cv-8137-UA1 Dockets.Justia.com 1 MAN (C.D. Cal.) (dismissed December 11, 2013 as barred by Heck v. Humphrey, 512 U.S. 477 2 (1994),1 and for naming immune defendants); (2) Barger v. FBI, 1:13-cv-535-DLB (E.D. Cal.) 3 (dismissed November 21, 2013 for failure to state a claim); and (3) Fisher v. FBI, 1:13-CV-414- 4 LJO-SAB (E.D. Cal.) (dismissed July 26, 2013 for failure to state a claim). 5 The section 1915(g) exception applies if the complaint makes a plausible allegation that 6 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 7 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to 8 apply, the court must look to the conditions the “prisoner faced at the time the complaint was 9 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 10 allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an 11 overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055. 12 Here, the March 31, 2014 complaint (ECF No. 1) is nearly incomprehensible. Plaintiff is 13 suing the “Director of ‘OPS’ of CDCR.” He appears to allege that he was not properly integrated 14 from single cell status into the general population at California State Prison, Sacramento. He 15 claims that on November 28, 2013, an unknown “psychopath” cut his throat and attempted to 16 murder him, causing a traumatic brain injury, pain, and partial paralysis. Plaintiff believes that 17 CDCR is preventing him from investigating the incident. He also claims to have been “tortured” 18 by using the medication risperdal from January 25, 2013 until July 1, 2013, while at Corcoran 19 State Prison, and that a correctional officer at Corcoran once slammed his head into concrete. 20 Plaintiff also complains that an employee at Pelican Bay State Prison once refused to copy more 21 than 50 pages for him. Plaintiff complains of unspecified safety concerns. 22 23 24 25 26 27 28 1 In Heck, the Supreme Court clarified that a dismissal pursuant to the rule announced therein was a denial of “the existence of a cause of action [under § 1983].” Heck, 512 U.S. at 489. Absent a cause of action, there is no claim upon which relief can be granted. Dismissals pursuant to Heck, therefore, can reasonably be interpreted as dismissals for failure to state a claim, and qualify as strikes under 1915(g). Duncan v. Ramirez, No. C 12-6251, 2013 U.S. Dist. LEXIS 93840, at *4 (N.D. Cal. July 3, 2013); Ortega v. Heitkamp, No. 2:11-cv-2735 GEB CKD, 2013 U.S. Dist. LEXIS 9246, at *3 (E.D. Cal. Jan. 23, 2013); see also Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011); Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995). 2 1 Plaintiff does not allege he faced imminent danger of serious physical injury at the time he 2 filed his complaint, and there is no plausible basis for concluding such a danger existed. When 3 plaintiff filed the complaint, he was housed at the California Health Care Facility. None of the 4 events complained of occurred at the California Health Care Facility, where plaintiff remains 5 housed. Because the complaint fails to demonstrate that plaintiff faced any imminent danger of 6 serious physical injury at the time he filed his complaint, the imminent danger exception does not 7 apply. 8 9 10 As plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, this action must be dismissed. Accordingly, IT IS HERBEY RECOMMENDED that plaintiff’s request for leave to 11 proceed in forma pauperis be denied and this action be dismissed without prejudice to re-filing 12 upon pre-payment of the $400 filing fee. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: June 25, 2014. 21 22 23 24 25 26 27 28 3
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