(PC) Cramer v. Macomber

• Court: District Court, E.D. California
• Decided: May 1, 2025
• Docket: 1:23-cv-01712
• Status: Unknown

Opinion

1 2 3 4

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES CRAMER, Case No. 1:23-cv-01712 KES EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT PLAINTIFF’S IFP v. STATUS BE REVOKED AND THAT 12 PLAINTIFF BE REQUIRED TO PAY THE JEFF MACOMBER, et al., FILING FEE IN FULL IF HE WANTS TO 13 PROCEED WITH THIS ACTION Defendants. 14 (ECF Nos. 2, 7)

15 OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 Plaintiff James Cramer is incarcerated at California Substance Abuse Treatment Facility 18 (CSATF) and is proceeding pro se in this action filed on December 13, 2023. (ECF No. 1). The 19 Court screened the complaint, found that it stated no cognizable claims, and gave Plaintiff leave 20 to amend on July 15, 2024. (ECF No. 10). Plaintiff filed a First Amended Complaint on 21 September 9, 2024. (ECF No. 13). 22 Along with his complaint, Plaintiff also filed an application to proceed in forma pauperis 23 (IFP) in this action (ECF No. 2), which the Court granted on December 28, 2023 (ECF No. 7). 24 Because the Court concludes that Plaintiff had at least three “strikes” prior to filing this action and because he was not in imminent danger of serious physical injury at the time he filed 25 it, the Court finds that Plaintiff’s motion to proceed in forma pauperis was improvidently granted, 26 and recommends that Plaintiff’s IFP status be revoked and Plaintiff be required to pay the $405 27 filing fee in full if he wants to continue to proceed with the action. 28 1 I. IFP STATUS 2 “IFP status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 3 1999); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“To proceed in forma pauperis is a 4 privilege not a right.”). The grant or refusal of permission to proceed in forma pauperis is left to the sound discretion of the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller 5 v. Dickson, 314 F.2d 598 (9th Cir. 1963)). The latitude given a district court in such matters is 6 especially broad in civil actions by prisoners against their wardens and other officials. Smart, 347 7 F.2d at 116 (footnote citation omitted); Shobe v. People of State of California, 362 F.2d 545, 546 8 (9th Cir. 1966) (citing Smart). 9 An inmate’s in forma pauperis status may be revoked at any time if the court, either sua 10 sponte or on a motion, determines that the status was improvidently granted. Spencer v. Milan, 11 No. 1:20-CV-00682 JLT GSA PC, 2024 WL 201135, at *1 (E.D. Cal. Jan. 17, 2024) (citing 12 Keeton v. Marshall, No. CV 17–01213 FMO, 2018 WL 4381543, at *6 (C.D. Cal. June 8, 2018); 13 Owens v. Matthews, No. CV 16–07755 JFW, 2017 WL 603183, at *2 (C.D. Cal. Jan. 6, 2017)); 14 Wright v. Rodriguez, No. 1:23-CV-01586 GSA (PC), 2024 WL 4973213, at *1 (E.D. Cal. Sept. 15 30, 2024), report and recommendation adopted, No. 1:23-CV-01586 JLT GSA (PC), 2024 WL 16 4892026 (E.D. Cal. Nov. 26, 2024) (sua sponte recommending that plaintiff’s IFP status be 17 revoked). 18 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 19 Pertinent here is the “three strikes provision” of 28 U.S.C. § 1915: 20 In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 21 incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 22 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 23 of serious physical injury. 24 28 U.S.C. § 1915(g). In determining whether a dismissal counts as a “strike” under § 1915(g), 25 “the reviewing court looks to the dismissing court’s action and the reasons underlying it. . . . This 26 means that the procedural mechanism or Rule by which the dismissal is accomplished, while 27 informative, is not dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). The Ninth Circuit has “interpreted the final form of dismissal under the statute, 28 1 ‘fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a 2 Federal Rule of Civil Procedure 12(b)(6) dismissal.” Id. (alteration in original). 3 Section 1915(g) also applies to dismissals of actions mislabeled as habeas petitions, when 4 in fact, the so-called habeas petition is in fact a 42 U.S.C. § 1983 complaint. El-Shaddai v. Zamora, 833 F.3d 1036, 1047 (9th Cir. 2016) (citing Andrews v. King, 398 F.3d 1113, 1122–23 & 5 n.12 (9th Cir. 2005)). The Ninth Circuit has “recognized that some habeas petitions may be little 6 more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to avoid the penalties 7 imposed by 28 U.S.C. § 1915(g).” Id. (internal quotation marks omitted). In those cases, the 8 Ninth Circuit has held that “it would be proper for the district court to determine that the 9 dismissal of the habeas petition does in fact count as a strike for purposes of § 1915(g).” Id. 10 In addition, “when (1) a district court dismisses a complaint on the ground that it fails to 11 state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 12 amended complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 13 F.3d 1133, 1143 (9th Cir. 2017); see also O’Neal v. Price, 531 F.3d 1146, 1156 (9th Cir. 2008) 14 (dismissal for failure to state a claim and another ground counts as a strike when it is clear from 15 the court’s reasoning that it considers failure to state a claim to be a fully sufficient condition to 16 dismiss the action). 17 III. ANALYSIS 18 A. Strikes 19 The Court takes judicial notice1 of the following cases filed by Plaintiff and dismissed 20 prior to commencing this action: 21 (1) Cramer v. Wooford et al., 3:04-cv-04707-MMC (N.D. Cal. Jan. 19, 2006) (dismissed 22 for failure to file an amended complaint following a screening order dismissing 23 complaint for failure to state a claim); (2) Cramer v. Neuschmid et al., 5:20-cv-00896-EJD (N.D. Cal. Apr. 11, 2020) (dismissed 24 for failure to file an amended complaint following a screening order dismissing 25 complaint for failure to state a claim); 26 27 1 “In particular, a court may take judicial notice of its own records in other cases . . . .” United 28 States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 (3) Cramer v. Ducart, et al., 4:17-cv-01034-JST (N.D. Cal. Apr. 28, 2017) (habeas 2 petition dismissed as a mislabeled § 1983 action). 3 (4) Cramer v. Frauenheim, 4:17-cv-02997-JST (N.D. Cal. July 11, 2017) (habeas petition 4 dismissed as a mislabeled § 1983 action). With respect to Ducart and Frauenheim—the two habeas petitions dismissed as 5 mislabeled § 1983 actions—the Court makes the following additional findings. 6 In Ducart, Plaintiff filed a habeas petition on February 28, 2017. Petition, ECF No. 1, 7 Ducart, 4:17-cv-01034-JST (N.D. Cal. Feb. 28, 2017). He alleged that, because his legal 8 materials “from active state appeal no. H034348/Case No. 21208” were seized and confiscated, 9 he was deprived of access to courts and denied “his right to speak freely and petition the 10 government.” Id. at 6. In its order dismissing the petition, the Ducart court explained that 11 Plaintiff’s allegations challenged conditions of Plaintiff’s confinement rather than “the lawfulness 12 or duration of petitioner’s incarceration.” See Order of Dismissal, ECF No. 7 at 1, Ducart, 4:17- 13 cv-01034-JST (N.D. Cal. Apr. 28, 2017). The Ducart court concluded that Plaintiff’s “claim is 14 not the proper subject of a habeas action, but must be brought as a civil rights case under 42 15 U.S.C. § 1983” and dismissed Plaintiff’s petition on April 28, 2017. Id. 16 Less than a month later, Plaintiff filed a habeas petition in the same court, again alleging 17 that his legal documents “from active case no. H034348/211208” were seized. Petition, ECF No. 18 1 at 6, Frauenheim, 4:17-cv-02997-JST (N.D. Cal. May 24, 2017). The district court again 19 dismissed the petition because Plaintiff did not challenge the lawfulness or duration of his 20 incarceration and, instead, challenged his conditions of his confinement. See Order of Dismissal, 21 ECF No. 9 at 1, Case No. 4:17-cv-02997-JST, Frauenheim. Thus, as in Ducart, the Frauenheim 22 court concluded that Plaintiff’s “claim is not the proper subject of a habeas action, but must be 23 brought as a civil rights case under 42 U.S.C. § 1983.” Id. As noted by the Ninth Circuit in El-Shaddai, where a Section 1983 action is mislabeled as 24 a habeas petition to avoid Section 1915(g)’s penalties, the district court may “‘determine that the 25 dismissal of the habeas petition does in fact count as a strike.’” 833 F.3d at 1047 (quoting 26 Andrews, 398 F.3d at 1122 n.12)). The court reasoned that as “recognized in Andrews, [courts] 27 28 1 should look to the substance of the dismissed lawsuit in order to determine whether it can be 2 counted as a ‘strike.’” Id. at 1047. 3 The substance of Plaintiff’s habeas corpus petitions in Ducart and Frauenheim challenged 4 only conditions of confinement, a quintessential Section 1983 claim, rather than the validity or duration of his confinement. A habeas corpus petition is limited to challenges to the validity or 5 duration of a prisoner’s confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489–98 (1973); see 6 also Ramirez v. Galaza, 334 F.3d 850 859 (9th Cir. 2003). Conversely, “a § 1983 action is the 7 exclusive vehicle for claims brought by state prisoners that are not within the core of habeas 8 corpus.” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016). Accordingly, this Court agrees 9 with the Ducart and Frauenheim courts that Plaintiff’s habeas petitions were mislabeled Section 10 1983 actions. 11 Even if the dismissal of the first habeas petition in Ducart were not counted as a strike, 12 because Plaintiff may not have understood the distinction between habeas petitions and Section 13 1983 cases at that time, the second dismissal in Frauenheim should still count as a strike because 14 Plaintiff clearly understood the distinction by then. In the first Ducart dismissal order, the court 15 explained that a habeas corpus petition was not the proper vehicle for pursuing such claims and 16 that plaintiff should proceed with a Section 1983 civil rights action. The court specifically 17 highlighted the difference in costs of litigation: “the filing fee for a habeas petition is five dollars; 18 for civil rights cases, however, the fee is now $400 ($350 if IFP status is granted) and under the 19 Prisoner Litigation Reform Act the prisoner is required to pay it, even if granted in forma 20 pauperis status, by way of deductions from income to the prisoner’s trust account. See 28 U.S.C. 21 § 1915(b).” Id. Finally, the Ducart court highlighted the difference in treatment of dismissed 22 actions, stating “a civil rights complaint which is dismissed as malicious, frivolous, or for failure 23 to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is not true for habeas cases.” Id. at 1–2. 24 Notwithstanding the Ducart courts instructions, Plaintiff then proceeded to file the habeas 25 petition in Frauenheim less than a month later, asserting substantially similar allegations as the 26 previously dismissed petition. Therefore, at the time he filed the Frauenheim petition, Plaintiff 27 knew the difference between a habeas petition and a Section 1983 action. Despite having this 28 1 information, Plaintiff again filed a habeas corpus petition challenging the conditions of his 2 confinement—including nearly identical allegations regarding seizure of his state appeal 3 documents—instead of pursuing the action under Section 1983. 4 Under Ninth Circuit authority, such an intentionally mislabeled habeas petition qualifies as a strike under the PLRA. El-Shaddai, 833 F.3d at 1047; Andrews, 398 F.3d at 1122 n.12; see 5 also Heilman v. Deillen, No. CV 14-6298 JVS (FFM), 2017 WL 10591881, at *7 (C.D. Cal. Sept. 6 18, 2017) (finding that dismissal of habeas petition counted as a strike where petition asserted a 7 quintessential 1983 claim, Plaintiff’s previous habeas petitions had been dismissed, and “plaintiff 8 was specifically advised that his habeas petition was denied because it did not challenge the 9 legality or duration of his confinement”); report and recommendation adopted sub nom. Heilman 10 v. Dillen, No. CV 14-6298 JVS (FFM), 2017 WL 10591880 (C.D. Cal. Nov. 17, 2017). 11 B. Imminent Danger 12 Because Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is 13 precluded from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was 14 filed, in imminent danger of serious physical injury. The availability of the imminent danger 15 exception “turns on the conditions a prisoner faced at the time the complaint was filed, not at 16 some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 17 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 18 or hypothetical.” Blackman v. Mjening, No. 1:16-CV-01421-LJO-GSA (PC), 2016 WL 5815905, 19 at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff must provide 20 “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct 21 evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 22 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent danger are 23 insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). The “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” and “a 24 threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 25 Additionally, there is a nexus requirement between the danger alleged and the claims 26 asserted: “Thus, in order to qualify for the § 1915(g) imminent danger exception, a three-strikes 27 prisoner must allege imminent danger of serious physical injury that is both fairly traceable to 28 1 unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara, 31 F.4th 2 692, 701 (9th Cir. 2022). Because Plaintiff is pro se, in making the imminent danger 3 determination, the Court must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 4 1055. Plaintiff’s complaint, which initiated this case in December of 2023, alleges that prison 5 officials and staff violated his constitutional rights by temporarily imposing restrictions on certain 6 Security Threat Groups following a fight between Fresno Bulldog members and general 7 population prisoners at CSATF in November of 2022. (See generally ECF No. 1). Plaintiff also 8 alleges that he was denied certain privileges, including yard access, packages, phone calls, 9 canteen, visiting, and certain educational and vocational programs between December 1, 2022 10 and January 27, 2023. Plaintiff alleges that fights in November 2022 and in January 2023 were 11 orchestrated by staff. 12 Such allegations are insufficient to show that there is a real and imminent threat to 13 Plaintiff’s personal safety under the standards described above. As the Court previously explained 14 in its order screening Plaintiff’s original complaint, “Plaintiff does not allege that he was 15 personally at risk of harm or suffered any injuries during either incident”—rather, his claim of 16 injuries are limited to the allegations “that the defendants have caused ‘psychological and 17 emotional trauma.’” (ECF No. 10 at 5, 15, 17). Moreover, the events at issue in this case occurred 18 in December of 2022, and Plaintiff did not file his complaint until a year later, in December of 19 2023, without identifying a new or ongoing risk of injury. 20 Therefore, the Court finds that Plaintiff has failed to demonstrate that he was in imminent 21 danger of physical injury when he filed the complaint. See Driver v. Pohovich, No. 2:22-CV-1672 22 DB P, 2023 WL 2394154, at *2 (E.D. Cal. Feb. 1, 2023), report and recommendation adopted, 23 2023 WL 8004324 (E.D. Cal. Nov. 17, 2023) (concluding that Plaintiff did not meet the imminent danger exception where “[t]here [was] nothing in the complaint that would indicate plaintiff was 24 under threat of imminent danger based on the excessive force incidents” alleged in the complaint 25 that purportedly occurred about two months before filing the complaint). 26 27 28 1 Because Plaintiff is a “three-striker” and was not in imminent danger when he filed this 2 | action, the Court will recommend that Plaintiff’s IFP status be revoked and Plaintiff be required 3 || to pay the $405 filing fee in full if he wants to proceed with the action. 4 | IV. CONCLUSION, ORDER, AND RECOMMENDATIONS 5 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 6 action. 7 Accordingly, IT IS RECOMMENDED that: 8 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's in forma pauperis status be revoked.

9 2. Plaintiff be directed to pay the $405.00 filing fee in full if he wants to proceed with this action. 10 3. Plaintiff be advised that failure to pay the filing fee in full will result in the dismissal of this case. 2 These findings and recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with these findings and recommendations, Plaintiff may file written objections 13 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 16 | and Recommendations.” Any objections shall be limited to no more than 15 pages, including 17 | exhibits. 18 Plaintiff is advised that failure to file objections within the specified time may result in the 19 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 20 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 0 IT IS SO ORDERED.

23 | Dated: _ May 1, 2025 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 28