1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL STEVEN GORBEY, No. 1:21-cv-000320-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS UNDER 28 U.S.C. § 1915(G) AND THE CASE BE DISMISSED WITHOUT 14 INTERNAL REVENUE SERVICE, PREJUDICE1 FRESNO; UNITED STATES, 15 OBJECTIONS DUE WITHIN THIRTY DAYS Defendants. 16 (Doc. No. 2)
17 I. FACTS AND BACKGROUND 18 Plaintiff Michael Steven Gorbey, a federal inmate proceeding pro se, initiated this case by 19 filing a handwritten document referencing “the Federal Tort Claims Act” and “Bivens.” See Doc. 20 No. 1 at 1. Although not the model of clarity, plaintiff seeks a hearing “to adequately defend 21 [his] imminent danger issues or any aspect of [his] suit,” id. at 1, and identifies one claim alleging 22 that “[t]he IRS has den[ied] or embezzle[d] funds away from [plaintiff] needed for court filing 23 fees causing him to suffer imminent danger [].” Id. at 2. Plaintiff generally complains that the 24 federal courts have improperly denied him access to court by labeling him a three-striker and 25 prohibiting him from proceeding in forma pauperis under 28 U.S.C. § 1915. Id. at 2-3. His 26
27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 28 1 current claim is predicated upon his application for $1200.00 in stimulus money that he contends 2 the I.R.S. improperly attached for his past taxes. Id. at 8-9. The complaint also contains other 3 unrelated, past allegations against nonidentified defendants concerning: his treatment for 4 glaucoma, nonspecific attacks by unidentified inmates in 2017 and 2019, claims that authorities 5 planted and tampered with evidence and falsely charged him for various crimes, and complaints 6 that he previously was improperly assigned a top bunk despite him having a valid low bunk pass. 7 Id. at 3-8. As relief, plaintiff seeks, inter alia, $350, 000,000,000.00 in damages, an injunction 8 against the I.R.S., copies of his past tax returns, and future stimulus payments under the All Cares 9 Act. Id. at 13. Plaintiff moves to proceed in forma pauperis under 28 U.S.C. § 1915. Doc. No. 10 2. 11 II. APPLICABLE LAW 12 The “Three Strikes Rule” states: 13 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 14 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 15 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 16 physical injury. 17 28 U.S.C. § 1915(g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was 18 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 19 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 20 unsuccessful suits may be entirely barred from bring a civil action and paying the fee on a 21 payment plan once they have had on prior occasions three or more cases dismissed as frivolous, 22 malicious, or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 23 (9th Cir. 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal 24 for failure to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 25 To determine whether a dismissal counts as a strike, a reviewing court looks to the 26 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 27 1106, 1109 (9th Cir. 2013). To count as a strike, the dismissal had to be on a “prior occasion,” 28 meaning the dismissal occurred before plaintiff initiated the instant case. See § 1915(g). A 1 dismissal counts as a strike when dismissed for frivolity, maliciousness, or for failure to state a 2 claim, or an appeal dismissed for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 3 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) 4 (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) 5 (dismissal that is on appeal counts as a strike during the pendency of the appeal). When a district 6 court disposes of an in forma pauperis complaint requiring the full filing fee, then such a 7 complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 8 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified immunity 9 counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 2016) 10 Although not exhaustive, dismissals that do not count as 1915(g) strikes include: 11 dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the 12 3 strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) 13 (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 14 writs of mandamus petitions, the Younger abstention doctrine, and Heck v. Humphrey generally 15 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 16 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 17 (reviewing some Heck dismissals may count as strikes, while others do not; abstention doctrine 18 dismissals and writs of mandamus do not count as strikes). A denial of a claim based on 19 sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 (9th Cir. 2019). 20 Finally, the Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason 21 enumerated under §1915A, then that reason “saves” the dismissal from counting as a strike. 22 Harris v. Harris, 935 F.3d 670 (9th Cir. 2019). 23 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 24 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoners 25 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 26 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 27 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 28 liberally to determine whether the allegations of physical injury are plausible. Williams v. 1 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 2 rejected as overly speculative or fanciful. Andrews, 493 F. 3d at 1057, fn. 11. 3 III.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL STEVEN GORBEY, No. 1:21-cv-000320-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS UNDER 28 U.S.C. § 1915(G) AND THE CASE BE DISMISSED WITHOUT 14 INTERNAL REVENUE SERVICE, PREJUDICE1 FRESNO; UNITED STATES, 15 OBJECTIONS DUE WITHIN THIRTY DAYS Defendants. 16 (Doc. No. 2)
17 I. FACTS AND BACKGROUND 18 Plaintiff Michael Steven Gorbey, a federal inmate proceeding pro se, initiated this case by 19 filing a handwritten document referencing “the Federal Tort Claims Act” and “Bivens.” See Doc. 20 No. 1 at 1. Although not the model of clarity, plaintiff seeks a hearing “to adequately defend 21 [his] imminent danger issues or any aspect of [his] suit,” id. at 1, and identifies one claim alleging 22 that “[t]he IRS has den[ied] or embezzle[d] funds away from [plaintiff] needed for court filing 23 fees causing him to suffer imminent danger [].” Id. at 2. Plaintiff generally complains that the 24 federal courts have improperly denied him access to court by labeling him a three-striker and 25 prohibiting him from proceeding in forma pauperis under 28 U.S.C. § 1915. Id. at 2-3. His 26
27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 28 1 current claim is predicated upon his application for $1200.00 in stimulus money that he contends 2 the I.R.S. improperly attached for his past taxes. Id. at 8-9. The complaint also contains other 3 unrelated, past allegations against nonidentified defendants concerning: his treatment for 4 glaucoma, nonspecific attacks by unidentified inmates in 2017 and 2019, claims that authorities 5 planted and tampered with evidence and falsely charged him for various crimes, and complaints 6 that he previously was improperly assigned a top bunk despite him having a valid low bunk pass. 7 Id. at 3-8. As relief, plaintiff seeks, inter alia, $350, 000,000,000.00 in damages, an injunction 8 against the I.R.S., copies of his past tax returns, and future stimulus payments under the All Cares 9 Act. Id. at 13. Plaintiff moves to proceed in forma pauperis under 28 U.S.C. § 1915. Doc. No. 10 2. 11 II. APPLICABLE LAW 12 The “Three Strikes Rule” states: 13 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 14 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 15 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 16 physical injury. 17 28 U.S.C. § 1915(g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was 18 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 19 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 20 unsuccessful suits may be entirely barred from bring a civil action and paying the fee on a 21 payment plan once they have had on prior occasions three or more cases dismissed as frivolous, 22 malicious, or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 23 (9th Cir. 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal 24 for failure to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 25 To determine whether a dismissal counts as a strike, a reviewing court looks to the 26 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 27 1106, 1109 (9th Cir. 2013). To count as a strike, the dismissal had to be on a “prior occasion,” 28 meaning the dismissal occurred before plaintiff initiated the instant case. See § 1915(g). A 1 dismissal counts as a strike when dismissed for frivolity, maliciousness, or for failure to state a 2 claim, or an appeal dismissed for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 3 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) 4 (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) 5 (dismissal that is on appeal counts as a strike during the pendency of the appeal). When a district 6 court disposes of an in forma pauperis complaint requiring the full filing fee, then such a 7 complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 8 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified immunity 9 counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 2016) 10 Although not exhaustive, dismissals that do not count as 1915(g) strikes include: 11 dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the 12 3 strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) 13 (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 14 writs of mandamus petitions, the Younger abstention doctrine, and Heck v. Humphrey generally 15 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 16 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 17 (reviewing some Heck dismissals may count as strikes, while others do not; abstention doctrine 18 dismissals and writs of mandamus do not count as strikes). A denial of a claim based on 19 sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 (9th Cir. 2019). 20 Finally, the Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason 21 enumerated under §1915A, then that reason “saves” the dismissal from counting as a strike. 22 Harris v. Harris, 935 F.3d 670 (9th Cir. 2019). 23 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 24 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoners 25 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 26 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 27 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 28 liberally to determine whether the allegations of physical injury are plausible. Williams v. 1 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 2 rejected as overly speculative or fanciful. Andrews, 493 F. 3d at 1057, fn. 11. 3 III. ANALYSIS 4 Turning to the application of the Three Strikes Rule in this matter, the undersigned finds 5 that plaintiff has incurred three or more strikes under section 1915(g), prior to filing this lawsuit, 6 based on a review of the National Pro Se Three Strike Database (“Three Strike Database”) and 7 the Pacer Database. See http://156.128.26.105/Litigant.aspx (National Pro Se Database); 8 http://pacer.usci.uscourts.gov pacer.gov. 9 Further, based on a pacer search, the Court takes judicial notice that Plaintiff has initiated 10 approximately 55 federal civil actions or appeals, and other federal courts have barred him from 11 proceeding as a three-striker. Although not exhaustive, for purposes of this report and 12 recommendation, each of the following cases are properly deemed qualifying 1915(g) strikes and 13 each were entered before plaintiff commenced the instant action: 14 15 Date of Order Case Style Disposition Gorbey v. United States of district court adopting F&R 16 July 7, 2010 America, et al., Case No. finding complaint failed to 17 2:08-cv-121-REM-JES, state a claim against all U.S. District Court, N.D. defendants, overruling 18 West Virginia plaintiff’s objections Gorbey v. Watts, et. al, App. appellate court denying ifp on 19 February 25, 2013 Case No. 12-3921, Second appeal and dismissing appeal Circuit Court of Appeals “because it lacks an arguable 20 basis in law or fact” under 28 21 U.S.C. § 1915(e) 22 Gorbey v. United States of dismissing complaint alleging 23 May 22, 2008 America, et al., Case No. conspiracy claim for failure to 1:08-cv-650-UNA, U.S. state a claim 24 District Court, District of 25 Columbia Gorbey v. the United States dismissing action against the February 25, 2008 26 Military, Case No. 1:08-cv- U.S. military as frivolous 334-RDB, U.S. District under § 1915 and warning 27 Court, Maryland plaintiff of three-strike provisions under § 1915(g) 28 1 November 15, 2010 Gorbey v. The District of dismissing complaint under Columbia, et al., Case No. 28 U.S.C. § 1915A(b)(1) for 2 1:10-cv-01751-UNA, U.S. failing to state a claim and as 3 District Court, District of frivolous; see also appellate Columbia; see also App. court’s order revoking district 4 Case No. 10-7175, D.C. court’s grant of ifp on appeal, Circuit Court finding no allegation of 5 imminent danger and plaintiff barred from proceeding on 6 appeal ifp under § 1915(g) 7 and listing identifying cases
8 9 Next, the undersigned considers whether the allegations in plaintiff’s complaint meet the 10 imminent danger exception. The complaint contains no plausible allegations that plaintiff is at 11 risk of any serious physical injury at the time of filing. Instead, plaintiff peppers his complaint 12 throughout with the words “imminent danger” or claims in conclusory terms to be “suffering 13 imminent dangers” without providing any factual basis in support of a physical injury. See Doc. 14 No. 1 at 1. Based on the foregoing, the undersigned recommends that the district court deny 15 plaintiff’s motion to proceed in forma pauperis under the Three Strikes Rule. 16 The undersigned further recommends that if plaintiff does not pay the full filing fee during 17 the 30-day period of time for objections, that the district court dismiss the case, without prejudice. 18 Considering the Amended Standing Order in Light of Judicial Emergency in the Eastern District 19 of California, this court has an enormous backlog of civil cases and need not permit a litigant all 20 too familiar with The Three Strikes Rule to repeatedly file cases that are frivolous, malicious, or 21 fail to a state claim, and are precisely those cases the Prison Litigation Reform Act was enacted to 22 curtail. See also Blackwell v. Jenkins, Case No. 2021 WL 825747, Case no. 2:19-cv-442-TLN- 23 DB (E.D. Ca. March 4 ,2021) (recommending denial of ifp motion and dismissal without 24 prejudice, unless prisoner-plaintiff pays the full filing fee by the deadline for filing objections to 25 the findings and recommendations); see also Dupree v. Gamboa, Case No. 1:19-cv-953-LJO- 26 GSA, 2019 WL (E.D. Cal. 2019) (denying in forma pauperis motion and dismissing case without 27 waiting thirty days to permit plaintiff additional time to pay the filing fee). Providing plaintiff 28 with thirty days, as opposed to the statutory fourteen-day period, to both object and pay the filing 1 | fee, provides a pro se prisoner litigant sufficient notice and an opportunity to prosecute this action 2 | and simultaneously enables the court an ability to efficiently manage an overburdened docket. 3 Accordingly, it is RECOMMENDED: 4 1. Plaintiff's motion for leave to proceed in forma pauperis (Doc. No. 2) be denied 5 under 28 U.S.C. § 1915(g) and, if plaintiff does not pay the full filing fee by the thirty-day (30) 6 | objection deadline, that the case be dismissed without prejudice. 7 2. The Clerk of Court is directed to terminate any pending motions/deadlines and 8 || close this case. 9 NOTICE TO PARTIES 10 These findings and recommendations will be submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 12 | days after being served with these findings and recommendations, a party may file written 13 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” Parties are advised that failure to file objections within the 15 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. Dated: April 9, 2021 law Nh. fareh Base □□□ 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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