Caraffa v. Maricopa County Sheriff's Office

Opinion

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alfred E. Caraffa, No. CV 20-01705-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Maricopa County Sheriff’s Office, et al., 13 Defendants.

14 15 On August 31, 2020, Plaintiff Alfred E. Caraffa,1 who is confined in a Maricopa 16 County Jail, filed a pro se civil rights Complaint (Doc. 1) and an Application to Proceed In 17 Forma Pauperis (Doc. 2). Pursuant to 28 U.S.C. § 1915(g), the Court will deny the 18 Application to Proceed and will dismiss the Complaint and this action without prejudice. 19 I. Dismissal Pursuant to 28 U.S.C. § 1915(g) 20 A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 21 (“IFP”) if: the prisoner has, on 3 or more prior occasions, while 22 incarcerated or detained in any facility, brought an action or 23 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 24 upon which relief may be granted, unless the prisoner is under 25 imminent danger of serious physical injury. 26 28 U.S.C. § 1915(g). 27

28 1 Plaintiff is housed in a male facility but uses feminine pronouns to refer to herself. The Court will do the same. 1 “[Section] 1915(g) should be used to deny a prisoner’s IFP status only when, after 2 careful evaluation of the order dismissing an action, and other relevant information, the 3 district court determines that the action was dismissed because it was frivolous, malicious 4 or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “In 5 some instances, the district court docket records may be sufficient to show that a prior 6 dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a 7 strike.” Id. at 1120. 8 At least three of Plaintiff’s prior actions qualify as “strikes” under § 1915(g): 9 (1) Caraffa v. Maricopa County Sheriff’s Department, CV 20- 00013-PHX-MTL (ESW) (Mar. 3, 2020 Order and Judgment 10 dismissing Second Amended Complaint for failure to state a 11 claim); 12 (2) Caraffa v. Maricopa County Sheriff’s Office, CV 20-00227- PHX-MTL (ESW) (Mar. 30, 2020 Order and Judgment 13 dismissing Second Amended Complaint for failure to state a 14 claim); 15 (3) Caraffa v. CHS, CV 20-00256-PHX-MTL (ESW) (Feb. 10, 2020 Order dismissing Complaint for failure to state a claim, 16 with leave to amend, and Apr. 13, 2020 Judgment for failure to file amended complaint). 17 18 Therefore, Plaintiff may not bring a civil action without complete prepayment of the 19 $350.00 filing fee and $50.00 administrative fee unless she is in imminent danger of serious 20 physical injury. 28 U.S.C. § 1915(g). 21 II. Imminent Danger 22 To meet the “imminent danger” requirement, the “threat or prison condition [must 23 be] real and proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting 24 Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations must be “specific 25 or credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). “[T]he exception 26 applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent 27 danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 28 1047, 1055 (9th Cir. 2007) (quoting § 1915(g)). Moreover, although a court considering a 1 | motion to proceed in forma pauperis, “should not attempt to evaluate the seriousness of a 2| plaintiff's claims[, . .. ] it has never been the rule that courts must blindly accept a prisoner’s allegations of imminent danger.” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 4} 2010). 5 “TT]he availability of the [imminent danger] exception turns on the conditions a 6 | prisoner faced at the time the complaint was filed, not some earlier or later time.” Andrews, 7| 493 F.3d at 1053. Claims concerning an “imminent danger of serious physical injury” 8 | cannot be triggered solely by complaints of past abuse. See Ashley v. Dilworth, 147 F.3d 9| 715,717 (8th Cir. 1998); Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999). 10 In her three-count Complaint, Plaintiff alleges that a deputy refused to file one or 11 | more her petitions for a writ of habeas corpus and “motions to the Court” and that she is “being punished cruelly and unusually” because she is “held in custody.” □□□□□□□□□□□ 13 | allegations do not credibly or plausibly suggest she is in imminent danger of serious 14| physical injury. Thus, the Court will deny Plaintiff’s Application to Proceed In Forma 15 | Pauperis and will dismiss Plaintiff’s Complaint and this action, without prejudice, pursuant 16} to § 1915(g). If Plaintiff wants to reassert these claims in the future, she must prepay the 17 | entire $400.00 filing and administrative fees when she files her action. ITIS ORDERED: 19 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied. 20 (2) Plaintiff's Complaint (Doc. 1) and this action are dismissed without 21] prejudice, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert these claims in the future, she must prepay the entire $400.00 filing and administrative fees when she files 23 | her action. 24 (3) | The Clerk of Court must enter judgment accordingly and close this case. 25 Dated this 3rd day of September, 2020. Micha T. Sihurde Michael T. Liburdi 28 United States District Judge