9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12
MATTHEW B. CRAMER, ) 13 ) Case No: 1:19-cv-000161-DAD-SKO Plaintiff, ) 14 ) vs. ) FINDINGS AND RECOMMENDATIONS 15 ) TO DENY MOTION FOR LEAVE TO BARRY JONES, et al., ) PROCEED IN FORMA PAUPERIS 16 )
) (Doc. 2) Defendants. 17 ) ) TWENTY-ONE (21) DAY OBJECTION 18 ) DEADLINE ) 19 I. INTRODUCTION 20 21 Plaintiff Matthew B. Cramer, a prisoner at North Kern State Prison, filed this pro se civil 22 rights action pursuant to 42 U.S.C. § 1983 on February 5, 2019. (Doc. 1 (“Compl.”).) Plaintiff 23 seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. §1915. (Doc. 2). 24 The Prison Litigation Reform Act (“PLRA”) was enacted, and became effective, on April 25 26, 1996. It provides that a prisoner may not bring a civil action or appeal a civil judgment under 26 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained 27 in any facility, brought an action or appeal in a court of the United States that was dismissed on the 28 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 1 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 2 “Section 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 3 the [PLRA’s] effective date.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 4 The Court takes judicial notice of the following Eastern District of California and District 5 of Oregon cases:1 Cramer v. Ty Warner, Inc., case number 2:00-mc-00099-FCD-GGH (E.D. Cal., 6 dismissed July 26, 2001, for failure to state a claim; no appeal filed); Cramer v. Multnomah County 7 Sheriff Department, case number 3:02-cv-00141-JE (D. Or., dismissed June 25, 2002, for failure to 8 state a claim; appeal dismissed for failure to prosecute); Cramer v. Schwarzenegger, case number 9 1:08-cv-01310-GSA (E.D. Cal., dismissed April 24, 2009, for failure to state a claim; no appeal 10 filed).2 Accordingly, prior to the date he filed this action, Plaintiff had at least three strikes under 11 section 1915(g), and he may proceed in forma pauperis only if he is seeking relief from a danger 12 of serious physical injury which was “imminent” at the time of filing.3 See Andrews v. Cervantes, 13 493 F.3d 1047, 1053 (9th Cir. 2007). 14 Under the law of the circuit, a plaintiff must be afforded an opportunity to persuade the 15 court that section 1915(g) does not bar in forma pauperis status for him. See Andrews v. King, 398 16 F.3d 1113, 1120 (9th Cir. 2005). Here, Plaintiff preemptively alleged in his complaint that he “is 17 in fear of his life.” (Compl. at 3.) For the reasons set forth below, however, the undersigned finds 18 that Plaintiff does not qualify for the imminent danger exception. 19
20 1 This Court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. 21 Evid. 201. 2 The third order relied upon as a strike—Cramer v. Schwarzenegger, No. 1:08-cv-01310-GSA (E.D. Cal. Apr. 24, 22 2009) (dismissing action for failure to state a cognizable claim)—was issued by a magistrate judge following only the consent of the plaintiff to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). Subsequent to that dismissal 23 order, the Ninth Circuit issued its opinion in Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017), in which the court held that absent the consent of all parties, including unserved defendants, magistrate judges lack jurisdiction to enter 24 dispositive decisions including orders of dismissal. In a recent decision, the Ninth Circuit held that Williams does not preclude the counting of a dismissal by a magistrate judge who had not received both parties’ consent to proceed as a 25 prior strike under section 1915(g). See Hoffmann v. Pulido, 928 F.3d 1147, 1150–51 (9th Cir. 2019). 26 3 The undersigned previously recommended that the district court deny Plaintiff’s application to proceed in forma pauperis under the PLRA’s “three strikes” provision. (See Doc. 3.) The assigned district judge adopted the findings 27 and recommendations. (See Doc. 5.) On appeal, the Ninth Circuit vacated the district court’s order, holding that one of the dismissals that was counted as a strike, Cramer v. Calif. Dep’t of Justice, 2:00-cv-02374-DFL-DAD (“Cramer”), 1 II. DISCUSSION A. Legal Standard 2 The availability of the imminent danger exception “turns on the conditions a prisoner faced 3 at the time the complaint was filed, not at some earlier or later time.” Cervantes, 493 F.3d at 1053. 4 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 5 or hypothetical.” Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 6 (E.D. Cal. Oct. 4, 2016). To meet his burden under section 1915(g), Plaintiff must provide “specific 7 fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 8 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 9 2003). “[V]ague and utterly conclusory assertions” of imminent danger are insufficient. White v. 10 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 11 (“[C]onclusory assertions” are “insufficient to invoke the exception to § 1915(g) . . . .”). The 12 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” and 13 “a threat... is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 14 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 15 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 16 ‘imminent danger’ exception of section 1915(g). In deciding whether such a nexus exists, we will 17 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 18 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable 19 judicial outcome would redress that injury. The three-strikes litigant must meet both requirements 20 in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, No. 1:13–CV–1883 AWI 21 MJS, 2015 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 22 293, 298–99 (2d Cir. 2009)). In making the imminent danger determination the Court must liberally 23 construe Plaintiff’s allegations. Cervantes, 493 F.3d at 1055. 24 B.
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9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12
MATTHEW B. CRAMER, ) 13 ) Case No: 1:19-cv-000161-DAD-SKO Plaintiff, ) 14 ) vs. ) FINDINGS AND RECOMMENDATIONS 15 ) TO DENY MOTION FOR LEAVE TO BARRY JONES, et al., ) PROCEED IN FORMA PAUPERIS 16 )
) (Doc. 2) Defendants. 17 ) ) TWENTY-ONE (21) DAY OBJECTION 18 ) DEADLINE ) 19 I. INTRODUCTION 20 21 Plaintiff Matthew B. Cramer, a prisoner at North Kern State Prison, filed this pro se civil 22 rights action pursuant to 42 U.S.C. § 1983 on February 5, 2019. (Doc. 1 (“Compl.”).) Plaintiff 23 seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. §1915. (Doc. 2). 24 The Prison Litigation Reform Act (“PLRA”) was enacted, and became effective, on April 25 26, 1996. It provides that a prisoner may not bring a civil action or appeal a civil judgment under 26 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained 27 in any facility, brought an action or appeal in a court of the United States that was dismissed on the 28 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 1 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 2 “Section 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 3 the [PLRA’s] effective date.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 4 The Court takes judicial notice of the following Eastern District of California and District 5 of Oregon cases:1 Cramer v. Ty Warner, Inc., case number 2:00-mc-00099-FCD-GGH (E.D. Cal., 6 dismissed July 26, 2001, for failure to state a claim; no appeal filed); Cramer v. Multnomah County 7 Sheriff Department, case number 3:02-cv-00141-JE (D. Or., dismissed June 25, 2002, for failure to 8 state a claim; appeal dismissed for failure to prosecute); Cramer v. Schwarzenegger, case number 9 1:08-cv-01310-GSA (E.D. Cal., dismissed April 24, 2009, for failure to state a claim; no appeal 10 filed).2 Accordingly, prior to the date he filed this action, Plaintiff had at least three strikes under 11 section 1915(g), and he may proceed in forma pauperis only if he is seeking relief from a danger 12 of serious physical injury which was “imminent” at the time of filing.3 See Andrews v. Cervantes, 13 493 F.3d 1047, 1053 (9th Cir. 2007). 14 Under the law of the circuit, a plaintiff must be afforded an opportunity to persuade the 15 court that section 1915(g) does not bar in forma pauperis status for him. See Andrews v. King, 398 16 F.3d 1113, 1120 (9th Cir. 2005). Here, Plaintiff preemptively alleged in his complaint that he “is 17 in fear of his life.” (Compl. at 3.) For the reasons set forth below, however, the undersigned finds 18 that Plaintiff does not qualify for the imminent danger exception. 19
20 1 This Court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. 21 Evid. 201. 2 The third order relied upon as a strike—Cramer v. Schwarzenegger, No. 1:08-cv-01310-GSA (E.D. Cal. Apr. 24, 22 2009) (dismissing action for failure to state a cognizable claim)—was issued by a magistrate judge following only the consent of the plaintiff to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). Subsequent to that dismissal 23 order, the Ninth Circuit issued its opinion in Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017), in which the court held that absent the consent of all parties, including unserved defendants, magistrate judges lack jurisdiction to enter 24 dispositive decisions including orders of dismissal. In a recent decision, the Ninth Circuit held that Williams does not preclude the counting of a dismissal by a magistrate judge who had not received both parties’ consent to proceed as a 25 prior strike under section 1915(g). See Hoffmann v. Pulido, 928 F.3d 1147, 1150–51 (9th Cir. 2019). 26 3 The undersigned previously recommended that the district court deny Plaintiff’s application to proceed in forma pauperis under the PLRA’s “three strikes” provision. (See Doc. 3.) The assigned district judge adopted the findings 27 and recommendations. (See Doc. 5.) On appeal, the Ninth Circuit vacated the district court’s order, holding that one of the dismissals that was counted as a strike, Cramer v. Calif. Dep’t of Justice, 2:00-cv-02374-DFL-DAD (“Cramer”), 1 II. DISCUSSION A. Legal Standard 2 The availability of the imminent danger exception “turns on the conditions a prisoner faced 3 at the time the complaint was filed, not at some earlier or later time.” Cervantes, 493 F.3d at 1053. 4 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 5 or hypothetical.” Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 6 (E.D. Cal. Oct. 4, 2016). To meet his burden under section 1915(g), Plaintiff must provide “specific 7 fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 8 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 9 2003). “[V]ague and utterly conclusory assertions” of imminent danger are insufficient. White v. 10 Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 11 (“[C]onclusory assertions” are “insufficient to invoke the exception to § 1915(g) . . . .”). The 12 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” and 13 “a threat... is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 14 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 15 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 16 ‘imminent danger’ exception of section 1915(g). In deciding whether such a nexus exists, we will 17 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 18 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable 19 judicial outcome would redress that injury. The three-strikes litigant must meet both requirements 20 in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, No. 1:13–CV–1883 AWI 21 MJS, 2015 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 22 293, 298–99 (2d Cir. 2009)). In making the imminent danger determination the Court must liberally 23 construe Plaintiff’s allegations. Cervantes, 493 F.3d at 1055. 24 B. Analysis 25 The undersigned has carefully reviewed Plaintiff’s complaint, including his exhibits, and 26 finds that it does not contain “plausible allegations” to suggest he “faced ‘imminent danger of 27 serious physical injury’ at the time of filing.” Id. at 1055 (quoting 28 U.S.C. § 1915(g)). The 1 Chief of Police of Tulare, California, the Chief of Police of Visalia, California, and two police 2 officers with the Visalia Police Department, for allegedly acting in concert to “fake” search 3 warrants and “steal” recovered and impounded property. (Compl. at 4–5.) With respect to 4 “imminent danger,” Plaintiff alleges that “[d]ue to [the] recent full blown arrests of Visalia 5 [Department] Detectives Shane Logan and Brian Ferreira, Plaintiff . . . is in fear of his life due to 6 his naming of other [Visalia Police Department] officers,” and that “[o]nce this case is noted, 7 Plaintiffs’ [sic] life will be in danger, Plaintiff is exposing officers [sic] corruption.” (Compl. at 3.) 8 The availability of the imminent danger exception “turns on the conditions a prisoner faced 9 at the time the complaint was filed, not at some earlier or later time.” Cervantes, 493 F.3d 1047, 10 1053. Plaintiff’s generalized fear of potential harm to be suffered in the future due to his filing of 11 this lawsuit is insufficient to satisfy section 1915(g)’s “imminence” requirement. See id. at 1055. 12 Plaintiff has also failed to allege a threat of imminent serious physical injury beyond that which is 13 merely speculative or hypothetical. See Blackman, 2016 WL 5815905, at *1. See also Martin, 319 14 F.3d at 1050; White, 157 F.3d at 1231–32. Here, it is not clear that the named defendants are even 15 aware of this case that he will allegedly be retaliated against for filing—as they have not yet been 16 served. Cf. Logan v. Tomer, Case No. 1:17–cv–00887–EPG (PC), 2017 WL 3896364, at *2 (E.D. 17 Cal. Sept. 6, 2017) (finding prisoner’s allegations that he was retaliated for filing a lawsuit failed 18 to show cause that he was in imminent danger when he filed the complaint). 19 Finally, even if the allegations concerning prospective retaliation by the named defendants 20 constituted such an imminent threat, they are not related to the claims in his case. See Stine, 2015 21 WL 5255377, at *1; see also Pettus, 554 F.3d at 198–99. Here, Plaintiff seeks the “investigation 22 and recovery” of his property, including cash, vehicles, and weapons, that he contends Defendants 23 stole and/or improperly impounded in violation of his constitutional rights. (Compl. at 6. See also 24 id. at 3–5.) The allegations regarding any retaliation by Defendants for filing this case do not have 25 a nexus to his claims: Plaintiff does not allege, for example, that Defendants’ theft or acts of 26 impoundment have put him in imminent danger. Put another way, Plaintiff has not shown that he 27 is in imminent danger that would be redressed by this lawsuit.4 1 III. CONCLUSION AND ORDER 2 Because Plaintiff has, while incarcerated, accumulated more than three “strikes” pursuant 3 to § 1915(g), and he fails to make a “plausible allegation” that he faced imminent danger of serious 4 physical injury at the time he filed his complaint, he is not entitled to the privilege of proceeding in 5 forma pauperis in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 6 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from 7 accessing the courts; it only precludes prisoners with a history of abusing the legal system from 8 continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 9 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not 10 right.”). 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. Plaintiff's motion to proceed in forma pauperis (Doc. 2) be denied with prejudice 13 under 28 U.S.C. § 1915(g); 14 2. Plaintiff be directed to submit, within fourteen (14) days after the district judge 15 adopts these findings and recommendations, the full filing fee of $400.00;5 and 16 3. Plaintiff be informed that failure to timely pay the filing fee will result in the 17 dismissal of this action without prejudice. 18 These Findings and Recommendations will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 20 one (21) days after being served with these Findings and Recommendations, Plaintiff may file 21 written objections with the Court. The document should be captioned “Objections to Magistrate 22 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 23 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 24 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
25 Plaintiff, however, “cannot create the imminent danger so as to escape the three strikes provision of the PLRA.” Ransom v. Ortiz, No. 1:11-cv-00617-LJO-GBC (PC), 2012 WL 3639120, at *4 (E.D. Cal. Aug. 23, 2012) (quoting 26 Taylor v. Walker, Civil No. 07-706-MJR, 2007 WL 4365718, *2 (S.D. Ill. Dec. 11, 2007)). “To hold otherwise would eviscerate the rule because every prisoner would then avoid the three strikes provision . . . .” Id. (quoting Muhammed 27 v. McDonough, No. 3:06-cv-527-J-32TEM, 2006 WL 1640128 (M.D. Fla. June 9, 2006)). 1 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at his address listed 2 on the docket for this matter.
3 IT IS SO ORDERED. 4
Sheila K. Oberto 5 Dated: January 23, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 6
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