Bradford v. Bracamonte

Opinion

1 2 3 4 5 6 7 10 11 RAYMOND ALFORD BRADFORD, Case No.: 3:20-cv-00213-WQH-WVG CDCR #H-16258, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AS BARRED BY 28 U.S.C. § 1915(g) 14 (ECF No. 9)

15 P. BRACAMONTE, et al., 16 Defendants. 17 18 19 Raymond Alford Bradford (“Plaintiff”), currently incarcerated at Salinas Valley 20 State Prison in Soledad, California, and proceeding pro se, filed this civil rights action 21 pursuant to 42 U.S.C. § 1983 seeking to sue several correctional officials employed at 22 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California; California 23 State Prison, Los Angeles County (“CSP-LAC”); California State Prison, Corcoran 24 (“CSP-Corcoran”); California Medical Facility (“CMF”) in Vacaville, California; and 25 California State Prison, Sacramento (“CSP-Sacramento”). (See Compl., ECF No. 1 at 3.) 26 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 27 time he submitted his Complaint, but instead has filed a Motion to Proceed In Forma 28 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 9.) 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011) (citation omitted). Prisoners, like 5 Plaintiff, however, “face[ ] an additional hurdle.” Id. In addition to requiring prisoners 6 to “pay the full amount of a filing fee,” in “increments” as provided by 28 U.S.C. § 7 1915(b), Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation 8 Reform Act (“PLRA”) amended § 1915 to preclude the privilege to proceed IFP 9 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 10 appeal in a court of the United States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13 14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005), as amended. 16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 17 Id. (emphasis omitted); see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 18 2007) (hereafter, “Cervantes”) (stating that under the PLRA, “prisoners who have 19 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the 20 three strikes rule . . . .”). The objective of the three strikes provision is to further “the 21 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 22 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior 23 dismissed claims applies to claims dismissed both before and after the statute’s effective 24 date.” Id. 25 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 26 were dismissed on the ground that [they were] frivolous, malicious, or fail[ed] to state a 27 claim,” Andrews, 398 F.3d at 1116 n.1 (first alteration in original), “even if the district 28 court styles such dismissal as a denial of the prisoner’s application to file the action without 1 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 2 When courts “review a dismissal to determine whether it counts as a strike, the style of the 3 dismissal or the procedural posture is immaterial. Instead, the central question is whether 4 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 5 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 6 F.3d 607, 615 (4th Cir. 2013)), as amended. “When . . . presented with multiple claims 7 within a single action,” courts “assess a PLRA strike only when the case as a whole is 8 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 9 (9th Cir. 2019) (quoting Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 10 Cir. 2016)). 11 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 12 pursuing any other IFP action in federal court unless he can show he is facing “imminent 13 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051, 14 1055 (noting § 1915(g)’s exception for IFP complaints that “make[] a plausible allegation 15 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 16 B. Discussion 17 1. Strikes 18 While Defendants typically carry the initial burden to produce evidence 19 demonstrating a prisoner is not entitled to proceed IFP, “[i]n some instances, the district 20 court docket records may be sufficient to show that a prior dismissal satisfies at least one 21 on the criteria under § 1915(g) and therefore counts as a strike.” See Andrews, 398 F.3d at 22 1120. That is the case here. 23 Based on the dockets of many court proceedings available on PACER,1 the Court 24 25 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA- 26 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. 27 Cal. 2015), and “‘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 28 1 finds that Plaintiff Raymond Alford Bradford, currently identified as CDCR Inmate #H- 2 16258, has had at least four prior prisoner civil actions dismissed on the grounds that they 3 were frivolous, malicious, or failed to state a claim upon which relief may be granted. They 4 are: 5 (1) Bradford v. White, No. 2:98-cv-00180-FCD-JFM PC (E.D. Cal. May 4, 1999), ECF No. 12, at 3 (recommending dismissal of case as time-barred); 6 see also id. (E.D. Cal. June 3, 1999), ECF No. 14, at 1-2 (adopting 7 recommendation) (strike one);

8 (2) Bradford v. Terhune, No. 2:04-cv-05496-AWI-DLB PC (E.D. Cal. Sept. 9 15, 2004), ECF No. 17, at 3 (recommending dismissal of case for failure to state a claim and failure to comply with court order requiring amendment); 10 see also id. (E.D. Cal. Oct. 21, 2004), ECF No. 18, at 1-2 (adopting 11 recommendation) (strike two);

12 (3) Bradford v. Grannis, No. 2:05-cv-00862-FCD-DAD PC (E.D. Cal. Sept. 13 15, 2005), ECF No. 12, at 3-4 (recommending dismissal of case for failure to state a claim and as frivolous); see also id. (E.D. Cal. Sept. 30, 2005), ECF 14 No. 14, at 1-2 (adopting recommendation) (strike three); and 15 (4) Bradford v. Superior Court, No. 1:07-cv-01031-OWW-LJO (E.D. Cal. 16 Aug. 3, 2007), ECF No. 3, at 2 (recommending dismissal of case as 17 frivolous); see also id. (E.D. Cal. Aug. 21, 2007), ECF No. 5, at 1-2 (adopting recommendation) (strike four). 18

19 Plaintiff is prohibited by § 1915(g) from pursuing any other IFP action in federal court 20 unless he can show he is facing “imminent danger of serious physical injury.” 28 U.S.C. 21 § 1915(g). 22 2. Imminent Danger Exception 23 Plaintiff’s Complaint does not contain “plausible allegation[s]” to suggest that he 24 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 25 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Plaintiff alleges that since August 2017, 26

27 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 28 1 Defendants have “lie[d] to the court claiming that [Plaintiff] [ ]stabbed[ ] officer F. Aviles 2 to justify their attack on [P]laintiff who was seriously injur[ed] . . . .”2 (Compl. at 2.) 3 According to Plaintiff, he was attacked by guards, and during the attack a correctional 4 officer stabbed himself with Plaintiff’s weapon. (See id. at 3.) According to Plaintiff, this 5 incident led to false attempted murder charges being filed against him and “used for false 6 imprisonment [and] placing [P]laintiff in administrative segregation.” (See id.) 7 Subsequently Plaintiff filed administrative grievances alleging that correctional officers 8 used excessive force and stole Plaintiff’s personal property. (See id.) 9 Plaintiff alleges that he “was attacked several times by the prison guards at (RJD) 10 Donovan Correctional Facility” and other prisons, “in retaliation for filing a lawsuit.” (See 11 id.) During these attacks, which were precipitated by a correctional officer making “several 12 telephonic calls to the [Defendants] G. Pickett, P. Bracamonte, W. Smith and L. Steel . . . ,” 13 Plaintiff suffered serious injuries. (See id.) According to Plaintiff, Defendants’ “sole goal 14 was to [ ]frame[ ] plaintiff and/or put a hit out on him by having another inmate ambush 15 Plaintiff because he would not comply with order and dismiss his lawsuit.” (See id. at 3- 16 4.) Defendant Pickett allegedly told Plaintiff that he would “find trouble if he did not drop 17 the lawsuit.” (See id. at 4.) Plaintiff alleges that on May 17, 2018, he was confronted by 18 Defendant Steel, who told another inmate to attack Plaintiff. (See id.) When the other 19 inmate attacked Plaintiff, Plaintiff stabbed him several times “in self defen[s]e . . . .” 20 Defendants allegedly then recovered Plaintiff’s weapon, “sprayed [P]laintiff with copious 21 amounts of pepper gas and started beating [P]laintiff over his head with the baton, 22 punching, kicking him in the face.” (See id.) “The guard F. Aviles confiscated the weapon 23 used to stab the inmate [and] F. Aviles used it to stab [ ]himself[ ] . . . .” (See id.) “The 24 [D]efendants, prison officials would go on to charge [P]laintiff with (2) bogus attempted 25

26 2 Plaintiff later alleges that the incident during which he allegedly stabbed officer F. Aviles occurred in 27 May 2018. (See Compl. at 4.) Whether the incidents in the Complaint began in August 2017 or May 2018, the Court’s conclusion is the same: Plaintiff does not satisfy the imminent danger exception to § 28 1 murders.” (See id.) 2 Plaintiff alleges that during these incidents Defendants violated Plaintiff’s Eighth 3 Amendment rights, retaliated against him for filing a lawsuit, and acted fraudulently by 4 writing false reports that Plaintiff committed two attempted murders. (See id. at 4-5.) 5 These claims do not plausibly allege that Plaintiff is danger of imminent physical 6 harm, is subject to any impending attack, or that he faced any viable danger at the time he 7 filed the Complaint. To qualify for § 1915(g)’s imminent danger exception, the danger 8 Plaintiff alleges that he faces must be real, proximate, and/or ongoing at the time he filed 9 his Complaint. See Cervantes, 493 F.3d at 1053 (“The exception’s use of the present tense, 10 combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to 11 us that the exception applies if the danger existed at the time the prisoner filed the 12 complaint.” (alteration in original)); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) 13 (“[T]he harm must be imminent or occurring at the time the complaint is filed.” (citation 14 omitted)). Incidents of past harm or retaliation are insufficient when they are not connected 15 to any ongoing possibility of harm at the time the complaint is filed. See Cervantes, 493 16 F.3d at 1053 (“[T]he availability of the exception turns on the conditions a prisoner faced 17 at the time the complaint was filed, not at some earlier or later time.”) The physical harms 18 that Plaintiff alleges, the assault by correctional officers in May 2018 and efforts to 19 encourage other inmates to attack Plaintiff, occurred well over a year prior to filing the 20 Complaint, and Plaintiff offers nothing more than conclusory allegations to show that any 21 threat of physical harm continued until the time that he filed the Complaint. See id. at 22 1055; see also Moten v. Sosa, No. 2:17-cv-0068-JAM-ACP, 2018 WL 571939, at *3 (E.D. 23 Cal. Jan. 26, 2018) (recommending dismissal under § 1915(g) and concluding that 24 allegations that a guard “lab[eled] plaintiff as a snitch-rat” thereby “expos[ing] [him] to 25 emotional, or physical harm from other prisoners” more than a year before the complaint 26 was filed did not satisfy the imminent danger exception (emphasis omitted)), report and 27 recommendation adopted, 2018 WL 5883933 (E.D. Cal. Nov. 9, 2018). 28 Plaintiff’s assertion that he is “requesting his (IFP) in forma pauperis status continue 1 under imminent danger due to the fact that the district court already ruled on it” in a 2 different case, Bradford v. Khamooshian, No. 17-cv-2053-BAS-MDD (S.D. Cal.), is also 3 insufficient. (See Compl. at 1.) In assessing whether a prisoner satisfies the imminent 4 danger exception, courts “maintain a singular focus on the facts alleged in the complaint in 5 deciding whether a prisoner faced the requisite harm.” See Cervantes, 493 F.3d at 1053 6 (collecting cases). The allegations in Plaintiff’s prior case satisfied the imminent danger 7 exception because, as the court found in that case, “Plaintiff alleges . . . ongoing inadequate 8 medical treatment claims arising at RJD at the time he filed this case . . . .” See Bradford, 9 No. 17-cv-2053-BAS-MDD (S.D. Cal. Mar. 5, 2018), ECF No. 21, at 4 n.2 (emphasis in 10 original). That conclusion is irrelevant in this case, which involves distinct factual and 11 legal claims stemming from incidents that predate the filing of the Complaint by more than 12 a year. 13 Accordingly, because Plaintiff has, while incarcerated, accumulated at least four 14 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he 15 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 16 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 17 1055; see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 18 permission to proceed IFP is itself a matter of privilege and not right.”). 19 II. Conclusion and Order 20 For the reasons set forth above, the Court: 21 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 9) as barred by 28 22 U.S.C. § 1915(g); 23 (2) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 24 to 28 U.S.C. § 1915(a)(3); and 25 /// 26 /// 27 /// 28 /// 1 (3) DIRECTS the Clerk of the Court to close the file. 2 || IT IS SO ORDERED. 3 || Dated: August 13, 2020 BME: ie Z. A a 4 Hon. William Q. Hayes 5 United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 oo