Jones v. Messler

• Court: District Court, S.D. California
• Decided: January 23, 2023
• Docket: 3:22-cv-01480
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, Jr., Case No.: 3:22-cv-01480-JO-KSC CDCR No. P-69574, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY 28 U.S.C. § 1915(g) GAIL MESSLER, Doctor, P&G; [ECF No. 2]; 16 MATTHEW BLAIDSDELL, Doctor, 17 PCP; MANI PASHMFOROUSH, MD; S. AND GATES, Health Care Appeals, 18 Defendants. (2) DIRECTING PLAINTIFF TO 19 PAY CIVIL FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff Henry A. Jones, Jr. (“Plaintiff” or “Jones”), currently incarcerated at 22 California State Prison, Los Angeles, in Lancaster, California (“LAC”), has filed a civil 23 rights Complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Jones claims Defendants have 24 violated his Eighth Amendment rights by failing to properly treat his heart condition and 25 injuries resulting from a broken pacemaker wire. See Compl., ECF No. 1. Jones did not 26 pay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he file a motion to proceed 27 in forma pauperis (“IFP”). ECF No. 2. For the reasons set forth below, the Court denies 28 Plaintiff’s IFP motion and directs him to pay the civil filing fee to avoid dismissal. 1 I. Discussion 2 In order to further “the congressional goal of reducing frivolous prisoner litigation 3 in federal court,” the Prison Litigation Reform Act (“PLRA”) § 804(g), 28 U.S.C. 4 § 1915(g) (1996) provides that prisoners with “three strikes” or more cannot proceed IFP. 5 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). A prisoner has three strikes if 6 on 3 or more prior occasions, while incarcerated or detained in any facility, [the prisoner] brought an action or appeal in a court 7 of the United States that was dismissed on the grounds that it is 8 frivolous, malicious, or fails to state a claim upon which relief can be granted . . .. 9

10 28 U.S.C. § 1915(g). 11 When courts “review a dismissal to determine whether it counts as a strike, the style of the 12 dismissal or the procedural posture is immaterial. Instead, the central question is whether 13 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 14 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 15 F.3d 607, 615 (4th Cir. 2013)). Once a prisoner has accumulated three strikes, he is 16 prohibited by Section 1915(g) from proceeding IFP in federal court unless he can show he 17 is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Andrews 18 v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). 19 Upon reviewing its docket and the Central District of California docket, the Court 20 finds that Plaintiff has several strikes that render him ineligible to proceed IFP. Fed. R. 21 Evid. 201(b)(2); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a 22 court may take judicial notice of its own records in other cases, as well as other courts’ 23 records). After checking for cases filed under the same name and comparing handwriting 24 and signatures, it appears that Plaintiff Henry A. Jones, Jr., identified as CDCR Inmate #P- 25 69574, is the same individual who filed the following seven actions: 26 (1) Jones v. Pregerson, et al., No. 2:15-cv-6797-MWF-PLA (C.D. Cal. Dec. 4, 2015) (associated with CDCR No. P-69574) (Order denying motion to 27 proceed IFP and dismissing complaint on the grounds it is “[f]rivolous, 28 1 malicious, or fails to state a claim upon which relief may be granted.”) [ECF No. 10] (strike one); 2

3 (2) Jones v. Pregerson, et al., No. 2:16-cv-0409-TJH-MRW (C.D. Cal. Jan. 27, 2016) (associated with CDCR No. P-69574) (Order denying motion to 4 proceed IFP and dismissing complaint on the grounds it is “[f]rivolous, 5 malicious, or fails to state a claim upon which relief may be granted [and] [s]eeks monetary relief from a defendant immune from such relief.”) [ECF 6 No. 12] (strike two); 7 (3) Jones v. Wu, No. 2:16-cv-2698-DDP-SS (C.D. Cal. Oct. 4, 2016) 8 (associated with CDCR No. P-69574) (Order denying motion to proceed IFP 9 and dismissing complaint on the grounds it is “[f]rivolous, malicious, or fails to state a claim upon which relief may be granted,” and finding Plaintiff had 10 three or more prior strikes within the meaning of 28 U.S.C. § 1915(g)) [ECF 11 No. 5] (strike three);

12 (4) Jones v. Pregerson, et al., No. 2:16-cv-7978-PA-JEM (C.D. Cal. Nov. 8, 13 2016) (associated with CDCR No. P-69574) (Order denying motion to proceed IFP and dismissing complaint on the grounds it is “[f]rivolous, 14 malicious, or fails to state a claim upon which relief may be granted” and 15 noting Plaintiff had three or more prior strikes within the meaning of 28 U.S.C. § 1915(g)) [ECF No. 16], appeal dismissed as frivolous, Jones v. 16 Pregerson, et al., No. 16-56839 (9th Cir. Jun. 13, 2017) (strike four); 17 (5) Jones v. Pregerson, et al., No. 2:19-cv-7875-GW-JEM (C.D. Cal. Nov. 18 4, 2019) (associated with CDCR No. P-69574) (Order denying motion to 19 proceed IFP and dismissing case on the grounds it is “[f]rivolous, malicious, or fails to state a claim upon which relief may be granted,” is barred by the 20 three strikes provision of 28 U.S.C. § 1915(g), and seeks monetary damages 21 from a defendant immune from such relief) [ECF No. 11] (strike five);

22 (6) Jones v. Haily, et al., No. 3:20-cv-00215-GPC-KSC (S.D. Cal. Aug. 14, 23 2020) (associated with CDCR No. P-69574) (Order denying motion to proceed IFP pursuant to 28 U.S.C. § 1915(g), dismissing case for failing to 24 state a claim pursuant to 28 U.S.C. § 1915A(b)(1), and denying motion for 25 preliminary injunction [ECF No. 14] (strike six); and

26 (7) Jones v. Doctors, No. 3:21-cv-00531-DMS-MSB (S.D. Cal. Sept. 22, 27 2021) (associated with CDCR No. P-69574) (Order denying motion to proceed IFP pursuant to 28 U.S.C. § 1915(g), dismissing case for failing to 28 1 state a claim pursuant to 28 U.S.C. § 1915A(b)(1), and denying motion for temporary restraining order [ECF No. 23] (strike seven). 2 3 Because Plaintiff has accumulated the above seven “strikes” while incarcerated, he 4 cannot proceed IFP unless he meets the “imminent danger” exception to the three strikes 5 provision of the PLRA. In order to do so, his pleadings must contain a “plausible allegation 6 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” 7 Andrews, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). “Imminent danger” requires an 8 allegation that a harm is “ready to take place,” or “hanging threateningly over one’s head,” 9 Andrews, 493 F.3d at 1056, and “cannot be triggered solely by complaints of past injury or 10 generalized fears of possible future harm.” Hernandez v. Williams, No. 21cv347-MMA- 11 KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (citing Andrews, 493 F.3d at 1053). 12 Plaintiff’s allegations and the medical records he attaches to his Complaint, 13 however, show no more than that he suffers from various chronic health conditions and 14 that he disagrees with the course of treatment for those conditions.1 He alleges that in April 15 of 2021, the lead from his defibrillator broke off, “causing pains in [his] chest that is 16 ongoing and plac[ing] the Plaintiff at risk of further complication if left untreated.” Compl., 17 ECF No. 1 at 3. Since then, he has not received appropriate medical care for the broken 18 lead. Id. The medical records he has attached to his Complaint, however, show that on 19 April 5, 2021, a cardiologist determined there was “no evidence of malfunction, lead 20 dislodgment or other concerns.” ECF No. 1-2 at 5. Jones further admits in his Complaint 21 that in May of 2021, defendant Dr. Mani Pashmfaroush, who he describes as his heart 22 specialist, told him the lead had not broken off. Compl., ECF No. 1 at 11. Following his 23 cardiology consultations on July 19, 2021, and on August 2, 2021, Plaintiff’s primary care 24 25

26 1 “When evaluating the sufficiency of a pleading under Fed. R. Civ. P. 12(b)(6), we review only the 27 allegations in the complaint and any attachments or documents incorporated by reference.” Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019) (citing United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 28 1 provider noted he had “no chest pain or palpitations,” and his defibrillator was operating 2 within normal limits. Id. at 3. Based on Plaintiff’s allegations and the medical records 3 included in his complaint, the Court finds that Plaintiff has not sufficiently alleged that he 4 has a broken defibrillator or any other related medical concern that poses an imminent 5 threat of harm. Because Plaintiff is not facing a harm that is “ready to take place,” or 6 “hanging threateningly over [his] head,” Jones does not meet the “imminent danger” 7 exception to the three strikes rule. Andrews, 493 F.3d at 1055 (quoting 28 U.S.C. § 8 1915(g)); see also See Stewart v. Lystad, No. 2: 16-CV-01439-BHS-JRC, 2016 WL 9 6816278, at *2 (W.D. Wash. Oct. 14, 2016) (finding no imminent danger where prisoner, 10 who suffered from foot pain caused by a broken screw, alleged the medical treatment she 11 was receiving was insufficient) (citing Andrews, 493 F.3d at 1053); see also Hicks v. 12 Shakiba, No. 21-CV-1867 JLS (AGS), 2022 WL 298371, at *2 (S.D. Cal. Feb. 1, 2022) 13 (finding no imminent danger where plaintiff alleged he suffered a stroke because prison 14 officials did not take his medical complaints seriously and prison officials were not 15 responding to his complaints about medical care). 16 II. Conclusion and Orders 17 For the reasons set forth above, the Court: 18 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 19 U.S.C. Section 1915(g); 20 (2) DIRECTS Plaintiff to pay the full statutory and administrative $402 civil 21 filing fee required by 28 U.S.C. § 1914(a) no later than thirty (30) days from the date of 22 this Order. If Plaintiff does not pay the civil filing fee by that date, the Court will dismiss 23 the action2; 24 (3) CERTIFIES that an appeal from this Order would be frivolous pursuant to 25 26 2 If Jones does pay the civil filing fee within the time stated, the Court will screen the Complaint pursuant 27 to 28 U.S.C. § 1915A (West 2022).

28 1 U.S.C. § 1915(a)(3); and 2 3 (4) DIRECTS the Clerk of the Court to close the file. 4 IT IS SO ORDERED.

7 || Dated: January 23, 2023 Hon. Jinsook Ohta United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 ee