1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, No. 2:19-cv-1753 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PAUL R. KRAUS, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that his rights were violated in connection with a 2019 Keyhea1 hearing. 19 Presently before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 3). For the 20 reasons set forth below the court will recommend that the motion be denied. 21 IN FORMA PAUPERIS STATUTE 22 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 23 the commencement and prosecution of any suit without prepayment of fees by a person who 24 submits an affidavit indicating that the person is unable to pay such fees. However, 25 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 26
27 1 Keyhea v. Rushen, 178 Cal.App.3d 526, 223 (1986), sets forth the substantive and procedural safeguards which must be adhered to when the state seeks to involuntarily medicate state 28 prisoners with long-term psychotropic medications. 1 on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 2 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 3 is under imminent danger of serious physical injury. 4 28 U.S.C. § 1915(g). “The dismissals described in this provision are commonly referred to as 5 ‘strikes.’” Harris v. Mangum, 863 F.3d 1133, 1139 (9th Cir. 2017) (citing El-Shaddiai v. Zamora, 6 833 F.3d 1036, 1042 (9th Cir. 2016)). 7 This “three strikes rule” was part of “‘a variety of reforms designed to filter out the bad 8 claims [filed by prisoners] and facilitate consideration of the good.’” Coleman v. Tollefson, 135 9 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has 10 “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless 11 he meets the exception for imminent danger of serious physical injury. See Andrews v. 12 Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). To meet this exception, the complaint of a 13 “three strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of 14 serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 15 1182, 1190 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 16 HAS PLAINTIFF ACCRUED THREE STRIKES? 17 Upon review of action filed by plaintiff, the court finds that plaintiff is subject to 28 18 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff was, at the 19 time the complaint was filed, under imminent danger of serious physical injury. Several judges in 20 this court, have previously found that plaintiff has accrued three strikes. The court takes judicial 21 notice of those cases, and of plaintiff’s prior filings described therein. Those cases include: 22 Bradford v. White, et al., No. 2:98-cv-0180 FCD JFM PC (dismissed June 3, 1999, as frivolous); 23 Bradford v. Terhune, et al., No. 1:04-cv-5496 AWI DLB PC (dismissed Oct. 21, 2004 for failure 24 to state a claim); Bradford v. Grannis, No. 2:05-cv0862 FCD DAD PC (dismissed Sept. 30, 2007 25 as frivolous and for failure to state a claim); and Bradford v. Terhune, et al., No. 1:04-cv-5261 26 LJO SMS PC (dismissed May 12, 2008 for the failure to state a claim). 27 //// 28 //// 1 The strikes described in those cases all occurred prior to the filing of the present action on 2 July 17, 2019.2 3 IS PLAINTIFF IN IMMINIENT DANGER OF SERIOUS PHYSICAL INJURY? 4 Because plaintiff has accrued three strikes, this court finds that plaintiff is precluded from 5 proceeding in forma pauperis in this action unless he is “under imminent danger of serious 6 physical injury.” 28 U.S.C. § 1915(g). The availability of the imminent danger exception turns 7 on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later 8 time. See Andrews v. Cervantes, 493 F.3d at 1053. “[A]ssertions of imminent danger of less 9 obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. 10 Imminent danger of serious physical injury must be a real, present threat, not merely speculative 11 or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact 12 allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 13 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 14 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 15 157 F.3d 1226, 1231-32 (10th Cir. 1998). This, the “imminent danger” exception is available 16 “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” 17 Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Further, the purpose of the imminent 18 danger exception is to allow prisoners to proceed with cases in order to resolve the issues creating 19 the imminent danger. See Young v. Curliss, No. 1:12-cv-1871 JLT (PC), 2013 WL 56987, at *2 20 (E.D. Cal. Jan. 3, 2013). Therefore, an assertion of imminent danger must be tied to the 21 allegations of his complaint. 22 Plaintiff names as defendants: (1) CDCR attorney, Paul Kraus; (2) CDCR Psychiatrist 23 Bennie Carter; and (3) SSA, MCA, Hahn. Plaintiff states that he “seek[s] relief . . . from a 24 conspiracy to commit murder and obstruction of justice.” (ECF No. 1 at 2.) While plaintiff has 25
2 While the complaint was initially docketed on July 29, 2019 and transferred to this district on 26 September 5, 2019, plaintiff’s filing was afforded the benefit of the prison mailbox rule. Under 27 the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 28 (1988). 1 included the words “imminent danger” in the caption he has not stated any allegations in the body 2 of the complaint indicating that he is imminent danger. Plaintiff alleges Carter set out to kill 3 plaintiff “through over dose with psychotropic involuntary medication using and abusing his 4 [power] as ‘quack’ psychiatrist.” (Id. at 3.) Plaintiff claims Hahn stole plaintiff’s copy of the 5 involuntary medication order off his door and refused to return it, answer plaintiff’s request for 6 interview form, or provide plaintiff with an additional copy. (Id. at 4.) Plaintiff states he wrote a 7 letter to the administrative law judge explaining that he did not want to attend the hearing and 8 contradicting Carter’s statement.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, No. 2:19-cv-1753 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PAUL R. KRAUS, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that his rights were violated in connection with a 2019 Keyhea1 hearing. 19 Presently before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 3). For the 20 reasons set forth below the court will recommend that the motion be denied. 21 IN FORMA PAUPERIS STATUTE 22 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 23 the commencement and prosecution of any suit without prepayment of fees by a person who 24 submits an affidavit indicating that the person is unable to pay such fees. However, 25 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 26
27 1 Keyhea v. Rushen, 178 Cal.App.3d 526, 223 (1986), sets forth the substantive and procedural safeguards which must be adhered to when the state seeks to involuntarily medicate state 28 prisoners with long-term psychotropic medications. 1 on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 2 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 3 is under imminent danger of serious physical injury. 4 28 U.S.C. § 1915(g). “The dismissals described in this provision are commonly referred to as 5 ‘strikes.’” Harris v. Mangum, 863 F.3d 1133, 1139 (9th Cir. 2017) (citing El-Shaddiai v. Zamora, 6 833 F.3d 1036, 1042 (9th Cir. 2016)). 7 This “three strikes rule” was part of “‘a variety of reforms designed to filter out the bad 8 claims [filed by prisoners] and facilitate consideration of the good.’” Coleman v. Tollefson, 135 9 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has 10 “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless 11 he meets the exception for imminent danger of serious physical injury. See Andrews v. 12 Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). To meet this exception, the complaint of a 13 “three strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of 14 serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 15 1182, 1190 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 16 HAS PLAINTIFF ACCRUED THREE STRIKES? 17 Upon review of action filed by plaintiff, the court finds that plaintiff is subject to 28 18 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff was, at the 19 time the complaint was filed, under imminent danger of serious physical injury. Several judges in 20 this court, have previously found that plaintiff has accrued three strikes. The court takes judicial 21 notice of those cases, and of plaintiff’s prior filings described therein. Those cases include: 22 Bradford v. White, et al., No. 2:98-cv-0180 FCD JFM PC (dismissed June 3, 1999, as frivolous); 23 Bradford v. Terhune, et al., No. 1:04-cv-5496 AWI DLB PC (dismissed Oct. 21, 2004 for failure 24 to state a claim); Bradford v. Grannis, No. 2:05-cv0862 FCD DAD PC (dismissed Sept. 30, 2007 25 as frivolous and for failure to state a claim); and Bradford v. Terhune, et al., No. 1:04-cv-5261 26 LJO SMS PC (dismissed May 12, 2008 for the failure to state a claim). 27 //// 28 //// 1 The strikes described in those cases all occurred prior to the filing of the present action on 2 July 17, 2019.2 3 IS PLAINTIFF IN IMMINIENT DANGER OF SERIOUS PHYSICAL INJURY? 4 Because plaintiff has accrued three strikes, this court finds that plaintiff is precluded from 5 proceeding in forma pauperis in this action unless he is “under imminent danger of serious 6 physical injury.” 28 U.S.C. § 1915(g). The availability of the imminent danger exception turns 7 on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later 8 time. See Andrews v. Cervantes, 493 F.3d at 1053. “[A]ssertions of imminent danger of less 9 obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. 10 Imminent danger of serious physical injury must be a real, present threat, not merely speculative 11 or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact 12 allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 13 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 14 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 15 157 F.3d 1226, 1231-32 (10th Cir. 1998). This, the “imminent danger” exception is available 16 “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” 17 Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Further, the purpose of the imminent 18 danger exception is to allow prisoners to proceed with cases in order to resolve the issues creating 19 the imminent danger. See Young v. Curliss, No. 1:12-cv-1871 JLT (PC), 2013 WL 56987, at *2 20 (E.D. Cal. Jan. 3, 2013). Therefore, an assertion of imminent danger must be tied to the 21 allegations of his complaint. 22 Plaintiff names as defendants: (1) CDCR attorney, Paul Kraus; (2) CDCR Psychiatrist 23 Bennie Carter; and (3) SSA, MCA, Hahn. Plaintiff states that he “seek[s] relief . . . from a 24 conspiracy to commit murder and obstruction of justice.” (ECF No. 1 at 2.) While plaintiff has 25
2 While the complaint was initially docketed on July 29, 2019 and transferred to this district on 26 September 5, 2019, plaintiff’s filing was afforded the benefit of the prison mailbox rule. Under 27 the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 28 (1988). 1 included the words “imminent danger” in the caption he has not stated any allegations in the body 2 of the complaint indicating that he is imminent danger. Plaintiff alleges Carter set out to kill 3 plaintiff “through over dose with psychotropic involuntary medication using and abusing his 4 [power] as ‘quack’ psychiatrist.” (Id. at 3.) Plaintiff claims Hahn stole plaintiff’s copy of the 5 involuntary medication order off his door and refused to return it, answer plaintiff’s request for 6 interview form, or provide plaintiff with an additional copy. (Id. at 4.) Plaintiff states he wrote a 7 letter to the administrative law judge explaining that he did not want to attend the hearing and 8 contradicting Carter’s statement. Plaintiff claims he gave the letter to his court-appointed 9 attorney, Kraus, but Kraus threw the letter in the trash. 10 The court finds that plaintiff’s allegations fail to meet the imminent danger exception. See 11 Hendon v. Kulka, No. 2:14-cv-2581 AC P, 2015 WL 4637962 at *2 (E.D. Cal. Aug. 3, 2015) 12 (finding plaintiff’s allegations that he was denied due process and suffered side effects stemming 13 from involuntary medication failed to meet imminent danger exception). Because plaintiff fails 14 to demonstrate that he meets the imminent danger exception to the three-strikes bar, this court 15 will recommend plaintiff be required to pay the $400 filing fee if he wishes to proceed with this 16 case. 17 Accordingly, the Clerk of the Court is HEREBY ORDERED to randomly assign a district 18 judge to this case; and 19 IT IS HEREBY RECOMMENDED that: 20 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) be denied 21 pursuant to 28 U.S.C. § 1915(g); and 22 2. Plaintiff be ordered to submit the $400 filing fee in order to proceed with this action. 23 These findings and recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 28 //// 1 | time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 2 | F.2d 1153 (th Cir. 1991). 3 | Dated: January 22, 2020 4 5 6 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 DB:12 16 | DB:1/Orders/Prisoner/CiviLRights/brad1753.scrn 17 18 19 20 21 22 23 24 25 26 27 28