(PC) Brookins v. Martinez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LEE BROOKINS, No. 1:24-cv-01158-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 L. MARTINEZ, et al., FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF PAY THE 15 Defendants. $405.00 FILING FEE FOR THIS ACTION 16 17 18 Plaintiff is proceeding pro se in this action filed pursuant to 42 U.S.C. § 1983. 19 Plaintiff filed the instant action on September 27, 2024.1 Plaintiff has not paid the 20 $405.00 filing fee or submitted an application to proceed in forma pauperis. Nonetheless, a 21 review of this Court’s case filing system reveals that Plaintiff has suffered three or more strikes 22 under 28 U.S.C. § 1915(g) and is not authorized to proceed in forma pauperis unless he was under 23 imminent danger of serious physical harm at the time the action was filed. 24 /// 25

1 The “mailbox rule” announced by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), applies to section 26 1983 cases. See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). Pursuant to the mailbox rule, pro se prisoner legal filings are deemed filed on the date the prisoner delivers the document to prison officials for 27 forwarding to the court clerk. Id. The proof of service attached to the Complaint is dated September 27, 2024, which the Court adopts as this action's constructive filing date. 28 1 I. 2 DISCUSSION 3 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous 4 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 5 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 6 1915(g), a non-merits related screening device which precludes prisoners with three or more 7 “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious 8 physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 9 2007). The statute provides that “[i]n no event shall a prisoner bring a civil action … under this 10 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 11 facility, brought an action or appeal in a court of the United States that was dismissed on the 12 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 13 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 14 A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) 15 and is precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the 16 complaint was filed, under imminent danger of serious physical injury. The Court takes judicial 17 notice2 of the following United States District Court cases: (1) Brookins v. Dwivedi, No. 1:18-cv- 18 00645-DAD-GSA (E.D. Cal. Sept. 7, 2021) (dismissed under Fed. R. Civ. P. 12(b)(6) finding 19 action time-barred by applicable statute of limitations); (2) Brookins v. Metts, et al., No. 1:17-cv- 20 01539-DAD-SAB (E.D. Cal. Jan. 9, 2019) (dismissed for failure to state a cognizable claim); (3) 21 Brookins v. Slayton, No. C-92-3688 BAC (N.D. Cal. Apr. 23, 1993) (dismissed under Fed. R. 22 Civ. P. 12(b0(6) finding defendant entitled to qualified immunity).3 23 /// 24 /// 25

2 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 634 n.1 (N.D. Cal. 26 1978).

27 3 See also Brookins v. Renteria, No. 1:21-cv-01809-JLT- (PC) (E.D. Cal. June 17, 2022) (finding plaintiff suffered three or more strikes and denying in forma pauperis). 28 1 The issue now becomes whether Plaintiff has met the imminent danger exception, which 2 requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and 3 which turns on the conditions he faced at the time he filed his complaint on September 27, 2024. 4 Andrews, 493 F.3d at 1053-1056. Conditions which posed imminent danger to Plaintiff at some 5 earlier time are immaterial, as are any subsequent conditions. Id. at 1053. While the injury is 6 merely procedural rather than a merits-based review of the claims, the allegations of imminent 7 danger must still be plausible. Id. at 1055. 8 Here, the Court finds that Plaintiff’s allegations fail to demonstrate imminent danger of 9 serious physical injury at the time of filing. In the instant complaint, Plaintiff alleges that on 10 October 13, 2022, sergeant Martinez recorded Plaintiff during an unclothed body search. (ECF 11 No. 1.) These allegations clearly do not demonstrate that Plaintiff was in imminent danger of 12 serious physical injury at the time he filed the complaint. See Andrews, 493 F.3d at 1053. There 13 are simply no facts from which the Court can find any basis that Plaintiff is currently under threat 14 of imminent physical danger to invoke the § 1915(g) exception. Accordingly, Plaintiff is 15 precluded from proceeding in forma pauperis and must pay the $405.00 filing fee for this action 16 to proceed. 17 II. 18 CONCLUSION AND RECOMMENDATIONS 19 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 20 District Judge to this action. 21 Further, it is HEREBY RECOMMENDED that, pursuant to 28 U.S.C. § 1915(g), Plaintiff 22 be directed to pay the $405.00 filing fee in full if he wishes to proceed with this action. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 4 TT IS SO ORDERED. □□ (Se 5 | Dated: _ October 2, 2024 OF ‘ UNITED STATES MAGISTRATE JUDGE

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