Freeman v. Shinn

• Court: District Court, D. Arizona
• Decided: September 2, 2022
• Docket: 2:22-cv-01373
• Status: Unknown

Opinion

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Freeman, No. CV 22-01373-PHX-JAT (MHB) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.

14 15 On August 15, 2022, Plaintiff Benjamin Freeman, who is confined in the Arizona 16 State Prison Complex-Yuma, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 and an Application to Proceed In Forma Pauperis(Doc. 2). Pursuant to 28 U.S.C. 18 § 1915(g), the Court will deny the Application to Proceed and will dismiss the Complaint 19 and this action without prejudice. 20 I. Dismissal Pursuant to 28 U.S.C. § 1915(g) 21 A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 22 (“IFP”) if: 23 the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 24 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 25 upon which relief may be granted, unless the prisoner is under 26 imminent danger of serious physical injury. 27 28 U.S.C. § 1915(g). 28 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 It appears that at least three of Plaintiff’s prior actions or appeals qualify as “strikes” 9 under § 1915(g): 10 (1) Freeman v. Arpaio, No. 94-0841-PHX-SMM (BGS) (D. Ariz. Mar. 22, 1995) 11 (frivolous); 12 (2) Freeman v. Watson, No. CV 94-0849-PHX-SMM (BGS) (D. Ariz. June 16, 13 1994) (frivolous); 14 (3) Freeman v. Stoller, CV 94-1065-PHX-SMM (BGS) (D. Ariz. Feb. 15, 1995) 15 (frivolous); 16 4) Freeman v. Miller, CV 94-1085-PHX-SMM (BGS) (D. Ariz. Feb. 15, 1995) 17 (frivolous); 18 (5) Freeman v. Arpaio, CV 94-1673-PHX-SMM (BGS) (D. Ariz. Feb. 16, 1995) 19 (frivolous); 20 (6) Freeman v. Arpaio, CV 94-1692-PHX-SMM (BGS) (D. Ariz. Feb. 15, 1995) 21 (frivolous) 22 Plaintiff has also repeatedly been denied IFP status because he has already 23 accumulated three strikes and failed to allege an imminent danger of serious physical 24 injury. See Freeman v. Stewart, No. CV 98-00261-PCT-SMM (SLV); Freeman v. 25 Richardson, No. CV 01-01021-PHX-SMM (MS); Freeman v. Tate, No. CV 09-00159- 26 PHX-SMM (MHB). Therefore, Plaintiff may not bring a civil action without complete 27 prepayment of the $350.00 filing fee and $52.00 administrative fee unless he is in imminent 28 danger of serious physical injury. 28 U.S.C. § 1915(g). 1 II. Imminent Danger 2 A plaintiff who has three or more strikes may not bring a civil action without 3 complete prepayment of the $350.00 filing fee and $52.00 administrative fee unless he is 4 in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). To meet the 5 “imminent danger” requirement, the “threat or prison condition [must be] real and 6 proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting Lewis v. 7 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations must be “specific or 8 credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). “[T]he exception 9 applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent 10 danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 11 1047, 1055 (9th Cir. 2007) (quoting § 1915(g)). Moreover, although a court considering a 12 motion to proceed in forma pauperis, “should not attempt to evaluate the seriousness of a 13 plaintiff’s claims[, . . . ] it has never been the rule that courts must blindly accept a 14 prisoner’s allegations of imminent danger.” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 15 2010). 16 Plaintiff alleges that Defendants have placed him in imminent danger of serious 17 physical injury “from assault [and] battery, hate crimes, and robbery” due to his disabilities, 18 including celiac disease and “extreme uncontrollable flatulence.” Plaintiff claims celiac 19 disease “causes fecal matter to go beyond stinky to smell egregiously bad,” and when 20 coupled with extreme uncontrollable flatulence “causes farts to flow perfusely [sic] 21 throughout” the dormitories. Plaintiff’s condition has resulted in being spat in his face by 22 “racist inmates,” disinfectant sprayed in his face, and hate crimes due to his disabilities 23 “with ridicule, scorn, mockery, humiliation, [and] mental abuse” by prisoners and staff. 24 These allegations do not show that Plaintiff is in imminent danger of serious physical 25 injury. Thus, the Court will deny Plaintiff’s Application to Proceed In Forma Pauperis and 26 will dismiss Plaintiff’s Complaint and this action, without prejudice, pursuant to § 1915(g). 27 If Plaintiff wants to reassert these claims in the future, he must prepay the entire $402.00 28 filing and administrative fees when he files his action. 1| ITIS ORDERED: 2 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied. 3 (2) Plaintiff's Complaint (Doc. 1) and this action are dismissed without 4) prejudice, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert these claims in 5 | the future, he must prepay the entire $402.00 filing and administrative fees when he files 6 | his action. 7 (3) The Clerk of Court must enter judgment accordingly and close this case. 8 Dated this 2nd day of September, 2022. 9 10 a 3 C 11 James A. Teil Org Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28