Asberry v. Florez et al, No. 4:2020cv04000 - Document 28 (N.D. Cal. 2021)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO REVOKE IN FORMA PAUPERIS STATUS; AND DISMISSING ACTION WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 11/30/2021. (kc, COURT STAFF) (Filed on 11/30/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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Asberry v. Florez et al Doc. 28 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 TONY ASBERRY, Case No. 20-cv-04000-YGR (PR) Plaintiff, 5 v. 6 7 NURSE FLOREZ, et al., ORDER GRANTING DEFENDANTS’ MOTION TO REVOKE IN FORMA PAUPERIS STATUS; AND DISMISSING ACTION WITHOUT PREJUDICE Defendants. 8 9 United States District Court Northern District of California 10 I. INTRODUCTION Plaintiff, an inmate currently incarcerated at the California Substance Abuse and Treatment 11 Facility, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. 1. He alleges 12 violations of his constitutional rights by prison officials and medical staff at Salinas Valley State 13 Prison (“SVSP”), where he was formerly incarcerated. Id. at 4-17. In his complaint, plaintiff 14 names the following defendants at SVSP: Nurse Florez, Correctional Officers Alba, Villanueva, 15 and Carrillo. Id. at 3. Plaintiff seeks compensatory and punitive damages. Id. at 18. Plaintiff was 16 previously granted leave to proceed in forma pauperis (“IFP”). Dkt. 5. 17 The parties are presently before the Court on defendant Villanueva’s motion to revoke 18 plaintiff’s IFP status, pursuant to 28 U.S.C. § 1915(g), and to dismiss the action without prejudice. 19 Dkt. 12. Defendants Florez, Alba, and Carrillo have filed motions to join defendant Villanueva’s 20 motion. Dkts. 18, 22, 24. Defendants Florez, Alba, and Carrillo motions are GRANTED, and the 21 joinder is accepted. 22 Also pending before this Court are pending motions filed by defendants Villanueva, 23 Florez, Alba, and Carrillo (hereinafter “defendants”) requesting extensions of time to file 24 responsive pleadings to the complaint pending the Court’s ruling on the motion to revoke 25 plaintiff’s IFP status. Dkts. 13, 19, 21, 25. 26 Having read and considered the papers submitted, and being fully informed, the Court 27 GRANTS defendants’ motion to revoke plaintiff’s IFP status and to dismiss the action for the 28 reasons set forth below, and it terminates all other remaining pending motions as moot. Dockets.Justia.com 1 II. BACKGROUND As mentioned above, on January 15, 2021, the Court granted plaintiff’s motion for leave to 2 proceed IFP. Dkt. 5. On the same date, the Court issued an Order of Service. Dkt. 6. The 3 following background is taken from the Court’s January 15, 2021 Order, which states as follows: 4 Plaintiff, who is a “full-time . . . wheelchair user,” alleges multiple claims, which the Court has summarized as the following: (1) a claim of deliberate indifference to his safety needs in violation of his Eighth Amendment rights, stemming from a May 20, 2019 incident in which he was attacked by two other inmates at SVSP (who he describes as unnamed “housing unit workers known as porters”), and Plaintiff has adequately linked all the named Defendants to his claim for failing to intervene during the attack; (2) a claim of deliberate indifference to Plaintiff’s serious medical needs in violation of his Eighth Amendment rights, stemming from the failure to properly treat his injuries stemming from the May 20, 2019 incident, and Plaintiff has adequately linked all the named Defendants to his claim; (4) a claim for retaliation based on the named Defendants’ failure to protect Plaintiff from being assaulted during the May 23, 2020 incident because Plaintiff filed grievances against other prison staff members; and (5) state law claims, including “other violations of mandatory duties imposed on Defendants.” Dkt. 1 at 4-17. 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 Plaintiff has stated a cognizable First Amendment retaliation claim as well as a cognizable Eighth Amendment claims for deliberate indifference to his safety and serious medical needs against all named Defendants. The Court will exercise supplemental jurisdiction over Plaintiff’s state law claims, including “other violations of mandatory duties imposed on Defendants.” 14 15 16 17 Dkt. 6 at 3. As mentioned above, defendants are requesting the Court revoke plaintiff’s IFP status 18 19 under 28 U.S.C. § 1915(g) and to dismiss the instant action. Dkt. 12. Even though plaintiff was 20 given the opportunity to file an opposition, he did not do so. 21 III. DISCUSSION 22 A. 23 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 28 U.S.C. § 1915(g) 24 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 25 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 26 facility, brought an action or appeal in a court of the United States that was dismissed on the 27 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 28 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 2 1 Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as 2 after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). Section 1915(g) is commonly referred to as the “three strikes rule.” The three strikes rule 3 4 “requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts 5 may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 6 2001). United States District Court Northern District of California 7 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 8 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 9 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 10 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 11 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 12 1121 (9th Cir. 2005) (citation omitted) (“Andrews I”). Only cases within one of these three 13 categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action 14 under section 1915(g) should only occur when, “after careful evaluation of the order dismissing an 15 [earlier] action, and other relevant information, the district court determines that the action was 16 dismissed because it was frivolous, malicious or failed to state a claim.” Id. 17 Andrews I requires that the prisoner be given notice of the potential applicability of 18 section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear 19 the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id. A 20 defendant seeking to challenge a prisoner’s IFP status has the burden of producing evidence that 21 allows the district court to conclude that the prisoner plaintiff has suffered at least three prior 22 dismissals that count as strikes under section 1915(g). Id. at 1120. Once the defendants have met 23 this initial burden, the burden shifts to the prisoner to show why a prior dismissal should not count 24 as a strike, or why he is entitled to the imminent danger of serious physical injury exception. Id. 25 A dismissal under section 1915(g) means that a prisoner cannot proceed with an action as a 26 pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the 27 outset of the action. See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming 28 district court’s denial of IFP status; dismissing complaint without prejudice per section 1915(g)). 3 1 B. Plaintiff’s Prior “Strikes” Defendants allege that plaintiff has filed, while incarcerated, at least three actions in the 2 United States District Court for the Southern District of California that were dismissed on the 3 basis that they were frivolous, malicious, or failed to state claim. At the time plaintiff was granted 4 leave to proceed IFP, the Court was unaware that plaintiff had filed any of these cases or the basis 5 of the dismissals of any such cases in other districts, i.e., the United States District Court for the 6 Southern District of California. 7 This Court GRANTS defendants’ request for judicial notice of the court documents 8 provided in support of the motion to dismiss on the grounds that plaintiff is barred from 9 proceeding IFP under 28 U.S.C. § 1915(g).1 Dkt. 26. Defendants argue that the following 10 dismissals may be counted as dismissals for purposes of section 1915(g): (1) Asberry v. Cate, et 11 United States District Court Northern District of California al., No. 3:13-cv-00055-MMA-DHB (S.D. Cal. Mar. 28, 2013) (voluntarily dismissed by plaintiff 12 after district court previously dismissed it for failure to state a claim upon which relief may be 13 granted); (2) Asberry v. Cate, et al., No. 3:13-cv-3006-CAB-RBB (S.D. Cal. Dec. 27, 2013) 14 (dismissed for failure to file timely amended complaint after original complaint was dismissed as 15 frivolous and for failure to state a claim as a matter of law); (3) Asberry v. Cate, et al., No. 3:1316 cv-02573-WQH-JLB (S.D. Cal. Oct. 28, 2014) (dismissed for failure to file timely third amended 17 complaint after second amended complaint was dismissed for failure to state a claim as a matter of 18 law); and (4) Asberry v. Godinez, et al., No. 3:19-cv-00153-DMS-RBB (S.D. Cal. Apr. 15, 2019) 19 (denying request to proceed IFP based on plaintiff accumulated three strikes before filing lawsuit; 20 dismissing complaint as frivolous). See Dkt. 12 at 6-7; Dkt. 34-1 at 3-72 (Exs. A-D). 21 Although defendants have attempted to list four prior dismissals, only three prior 22 dismissals need qualify under section 1915(g). This Court must review at least three dismissals to 23 determine whether they qualify as strikes under section 1915(g). See Andrews I, 398 F.3d at 1121. 24 25 26 27 28 1 The district court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations omitted) (granting request to take judicial notice in section 1983 action of five prior cases in which plaintiff was pro se litigant, to counter her argument that she deserved special treatment because of her pro se status). 4 United States District Court Northern District of California 1 Here, the Court will review all four aforementioned dismissals, which were all entered before the 2 instant action was brought by plaintiff on June 16, 2020, in order to determine whether they may 3 be counted as dismissals for purposes of section 1915(g). As further explained below, three of 4 these four dismissals qualify as “strikes” under section 1915(g). See id. 5 1. Case No. 3:13-cv-00055-MMA-DHB – Voluntary Dismissal Not Strike 6 In Case No. 3:13-cv-00055-MMA-DHB, the district judge dismissed plaintiff’s complaint 7 with leave to amend, finding that it failed to state a claim. Dkt. 34-1, Ex. A at 3-7. Instead of 8 filing an amended complaint, plaintiff’s voluntarily dismissed the case. Id. at 8-9. 9 Defendants argue that this dismissal constitutes a strike under section 1915(g) because “[a] 10 prisoner may not avoid incurring strikes simply by declining to take advantage of opportunities to 11 amend.” Dkt. 12 at 6. Defendants point out that other “[d]istrict courts have held that voluntary 12 dismissals entered after a court had already, independently dismissed the action for failure to state 13 a claim count as strikes. Id. (citing Williams v. Navarro, 2018 WL 4489683, at *3 (S.D. Cal. Sept. 14 19, 2018) (counting a voluntary dismissal as a strike when the case was voluntarily dismissed after 15 the Court had previously dismissed the case for failure to state a claim with leave to amend); 16 Chambers v. Laske, 2018 WL 3219649, at *7 (C.D. Cal. May 11, 2018) (finding the same)). The 17 Court disagrees with defendants, as explained below. 18 In Case No. 3:13-cv-00055-MMA-DHB, as mentioned, the district judge found that 19 plaintiff failed to state a claim, and dismissed plaintiff’s complaint with leave to amend. Dkt. 34- 20 1, Ex. A at 3-7. Rather than filing an amended complaint, plaintiff subsequently filed a notice of 21 voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a), in which he requested that 22 his complaint be voluntarily dismissed. The docket sheet for Case No. 3:13-cv-00055-MMA- 23 DHB shows no further entries after plaintiff’s notice for voluntary dismissal. See id. at 4-5. 24 Because the record shows that Case No. 3:13-cv-00055-MMA-DHB was closed, this Court 25 assumes that the district judge accepted plaintiff’s request for voluntary dismissal pursuant to Rule 26 41(a), and dismissed the action without prejudice by operation of law. See id. 27 28 Because section 1915(g) does not distinguish between dismissals with or without prejudice, a dismissal without prejudice may count as a strike. See O’Neal v. Price, 531 F.3d 5 1 1146, 1154 (9th Cir.2008). However, “under Rule 41(a)(1)(I), ‘a plaintiff has an absolute right to 2 voluntarily dismiss his action prior to service by the defendant of an answer or a motion for 3 summary judgment.’” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 4 1077 (9th Cir.1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.1997)). “[A] 5 dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left 6 as though no action had been brought, the defendant can’t complain, and the district court lacks 7 jurisdiction to do anything about it.” Id. at 1078. United States District Court Northern District of California 8 The Court points out that other district courts have held that a voluntary dismissal does not 9 constitute a strike under section 1915(g). See Williams v. Grannis, 2008 WL 4078664, *4 (E.D. 10 Cal. 2008) (finding that voluntary dismissal did not constitute a strike under section 1915(g)); see 11 also Jones v. Eller, 2018 WL 1801254, at *3 (C.D. Cal. Jan. 22, 2018) (noting that two stipulated 12 voluntary dismissals did not constitute strikes pursuant to § 1915). Therefore, the Court finds that 13 defendants have failed to meet their burden of establishing that the voluntary dismissal of Case 14 No. 3:13-cv-00055-MMA-DHB constitutes a dismissal for a qualifying reason under section 15 1915(g), and therefore it does not count as a strike. See Andrews I, 398 F.3d at 1120. 16 17 2. Case No. 3:13-cv-3006-CAB-RBB – First Strike In Case No. 3:13-cv-3006-CAB-(RBB), the district judge dismissed plaintiff’s complaint 18 with leave to amend on December 27, 2013, finding that the complaint was frivolous and failed to 19 state a claim. Dkt. 34-1, Ex. B at 4-11. Nothing in the record shows that plaintiff filed an 20 amended complaint. See id. at 2-3. Thereafter, the record shows that the case was closed. See id. 21 When a court dismisses a complaint with leave to amend, the dismissal does not count as a 22 strike because the suit continues. Lomaz v. Ortiz-Marquez, 140 S. Ct. 1721, 1727 n.4 (2020). 23 However, when the district court dismisses a complaint for failure to state a claim and grants leave 24 to amend, and the plaintiff then fails to file an amended complaint, the dismissal counts as a strike 25 under section 1915(g). Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“Harris II”). 26 Here, the record shows that the district court dismissed the complaint as frivolous as well 27 as for failure to state a claim, and that plaintiff failed to file an amended complaint; therefore, it 28 counts as a strike. See id. Plaintiff fails to provide persuasive evidence that rebuts the showing by 6 1 defendants that dismissals of the complaint as frivolous and for failure to state a claim constitute 2 qualifying reasons for a strike under section 1915(g). Therefore, the Court finds that defendants 3 have met the burden of establishing that Case No. 3:13-cv-3006-CAB-(RBB) was dismissed for 4 qualifying reasons under section 1915(g), and therefore counts as a strike. See Andrews I, 398 5 F.3d at 1120. United States District Court Northern District of California 6 3. Case No. 3:13-cv-02573-WQH-JLB (S.D. Cal.) – Second Strike 7 In Case No. 3:13-cv-02573-WQH-JLB, the district judge dismissed with leave to amend 8 plaintiff’s Second Amended Complaint on the basis that it failed to state a claim. See Dkt. 34-1, 9 Ex. C at 11-28. Having received no third amended complaint more than a month after the filing 10 deadline, the district judge enter another order dismissing the action without prejudice for failing 11 to state a claim, and failing to comply with the previous aforementioned order. Id. at 29-33. 12 Plaintiff appealed, and the Ninth Circuit affirmed dismissal. See id. at 8-9. Defendants again 13 argue that the dismissal in Case No. 3:13-cv-02573-WQH-JLB constitutes an additional strike for 14 the purposes of section 1915. Dkt. 12 at 7 (citing Harris II, 863 F.3d at 1143). Plaintiff has not 15 challenged defendants’ assertion. Therefore, defendants have met the burden of establishing that 16 Case No. 3:13-cv-02573-WQH-JLB counts as a strike. See Andrews I, 398 F.3d at 1120. 17 4. Case No. 3:19-cv-00153-DMS-RBB – Third Strike In Case No. 3:19-cv-00153-DMS-RBB, the district judge denied plaintiff’s motion to 18 19 proceed IFP, finding that he had accumulated “three strikes” before filing the lawsuit. Dkt. 34-1, 20 Ex. D 3-8. The court also screened the complaint, and dismissed the action as frivolous. Id. at 8- 21 9. 22 The Ninth Circuit has held that a case is “dismissed” for the purposes of section 1915(g) 23 “when the court denies the prisoner’s application to file the action without prepayment of the 24 filing fee on the ground that the complaint is frivolous, malicious or fails to state a claim, and 25 thereupon terminates the complaint.” O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008). 26 When a district court disposes of an IFP complaint on such grounds, the complaint is “dismissed” 27 for the purposes of section 1915(g) “even if the district court styles such dismissal as denial of the 28 prisoner’s application to file the action without prepayment of the full filing fee.” Id. at 1153 7 1 (finding that the district court necessarily reviewed the complaints and made an assessment on 2 their merits in making the determination whether the actions qualified for IFP status). This was 3 indeed the case in Case No. 3:19-cv-00153-DMS-RBB, wherein the district judge of the Southern 4 District denied plaintiff’s request to proceed IFP and also dismissed the complaint was frivolous. 5 Dkt. 34-1, Ex. D 3-8. Therefore, the aforementioned decision in Case No. 3:19-cv-00153-DMS- 6 RBB constitutes a qualifying strike under section 1915(g). See Andrews I, 398 F.3d at 1120. 7 In sum, three of four plaintiff’s aforementioned dismissals constitute “strikes” under 8 section 1915(g).2 Thus, plaintiff’s IFP status must be revoked unless he can show that he is 9 entitled to the imminent danger of serious physical injury exception under section 1915(g). 10 United States District Court Northern District of California 11 C. Imminent Danger Exception A plaintiff barred from bringing an action IFP because he has three strikes may still 12 proceed without prepaying court fees if he can show he is “under imminent danger of serious 13 physical injury.” 28 U.S.C. § 1915(g). The availability of the exception turns on the “conditions a 14 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 15 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). As this is merely a “threshold 16 procedural” question, the Ninth Circuit has indicated that district courts should not conduct an 17 overly detailed inquiry into whether a particular danger is serious enough under the serious 18 physical injury prong. Id. at 1055. Rather, “the exception applies if the complaint makes a 19 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 20 of filing.” Id. In order to satisfy the imminence prong, the prisoner must allege that the danger is 21 ongoing. See id. at 1056-57. 22 A district court should liberally construe the allegations in a complaint filed by a pro se 23 prisoner facing a section 1915(g) bar. See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 24 2002) (liberally construing allegations in complaint for initial determination of whether prisoner is 25 under imminent danger of serious physical injury). It is sufficient if any part of the complaint 26 27 28 2 The Court points out that even if it has found above that the voluntary dismissal in Case No. 3:13-cv-00055-MMA-DHB did not constitute a strike, only three prior dismissals need qualify under section 1915(g). As shown above, the Court reviewed plaintiff’s three other dismissals and determined that they all qualified as strikes under section 1915(g). 8 1 plausibly alleges that the prisoner is in imminent danger of serious physical injury at the time of 2 filing. Andrews II, 493 F.3d at 1053. Here, the question is whether plaintiff was in imminent danger on June 16, 2020, the date United States District Court Northern District of California 3 4 he filed his complaint. The Court finds that plaintiff’s allegations fail to show that he was. As 5 mentioned above, plaintiff alleged in his complaint that his claims stem from a May 20, 2019 6 incident, which was almost a year prior to the filing of the complaint. The Court notes that 7 plaintiff’s complaint does not allege that he faced an imminent danger of serious physical injury at 8 the time he filed his complaint. See generally Dkt. 1. Therefore, plaintiff has not shown that he is 9 entitled to the imminent danger exception under section 1915(g) to avoid dismissal without 10 prejudice. Plaintiff’s IFP status is therefore revoked. See Banos v. O’Guin, 144 F.3d 883, 885 11 (5th Cir. 1998) (revoking IFP status on appeal on three strikes grounds); Patton v. Jefferson Corr. 12 Center, 136 F.3d 458, 461, 465 (5th Cir. 1998) (district court correctly revoked IFP upon 13 discovering on remand that plaintiff had five prior strikes). Accordingly, the Court GRANTS 14 defendants’ motion to revoke plaintiff’s IFP status, and to dismiss the action without prejudice. 15 Dkt. 12. 16 IV. CONCLUSION 17 For the reasons outlined above, the Court orders as follows: 18 1. Defendants Florez, Alba, and Carrillo have filed motions to join defendant 19 Villanueva’s motion to revoke plaintiff’s IFP status, pursuant to 28 U.S.C. § 1915(g), and to 20 dismiss the action without prejudice. Dkts. 18, 22, 24. Defendants Florez, Alba, and Carrillo 21 motions are GRANTED, and the joinder is accepted. 22 2. This Court GRANTS defendants’ request for judicial notice of the court documents 23 provided in support of the motion to dismiss on the grounds that plaintiff is barred from 24 proceeding IFP under 28 U.S.C. § 1915(g). Dkt. 34-1. 25 3. The Court GRANTS defendants’ motion to revoke plaintiff’s IFP status, pursuant 26 to 28 U.S.C. § 1915(g), and to dismiss the action without prejudice. Dkt. 12. Leave to proceed 27 IFP is REVOKED, and the Court’s January 15, 2021 Order granting plaintiff IFP status (Dkt. 5) is 28 VACATED. 9 1 This case is DISMISSED without prejudice to plaintiff’s filing a motion to reopen 2 no later than twenty-eight (28) days from the date of this Order accompanied by the full filing fee 3 of $402.00. See 28 U.S.C. § 1915(g). If plaintiff fails to file a motion to reopen and pay the 4 full filing fee within the twenty-eight-day time frame, then he may pursue his claims by filing 5 a new civil rights case in which he pays the full filing fee. 6 7 5. The Clerk of the Court shall terminate all remaining pending motions as moot (dkts. 13, 19, 21, and 25). 8 6. The Clerk shall also close the case. 9 7. This Order terminates Docket Nos. 12, 13, 19, 21, and 25. 10 11 United States District Court Northern District of California 4. 12 13 IT IS SO ORDERED. Dated: November 30, 2021 ______________________________________ HON. YVONNE GONZALEZ ROGERS United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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