(PC) Hammler v. Diaz

Opinion

10 11 ALLEN HAMMLER, CASE NO. 1:20-cv-0488 JLT (PC)

12 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE

13 v. FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF LEAVE TO PROCEED IN 14 RALPH DIAZ, et al., FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) AND THAT PLAINTIFF BE

15 Defendants. REQUIRED TO PAY FILING FEE IN FULL

16 (Docs. 1, 2)

18 Plaintiff has filed a complaint asserting constitutional claims against governmental 19 employees. (Doc. 1.) Plaintiff has not, however, submitted an application to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915 or paid the $400.0 filing fee for this action. Instead, he moves 21 for leave to file a new case pursuant to 28 U.S.C. § 1915(g).1 (Doc. 2.) 22 ///

23 1 Plaintiff also references a vexatious litigant pre-filing order issued in Hammler v. Alvarez, 3:18-cv-0326-AJB-WVG (S.D. Cal. Aug. 13, 2019). Pursuant to the terms of that order, before plaintiff can initiate a civil rights action against a 24 prison official, as he seeks to do here, he “must seek and obtain leave of the presiding judge of the appropriate Court, prior to filing any new actions, against any defendant, in any forum in the State of California….” Id. Under California 25 law, a vexatious litigant is a pro se litigant who “has lost at least five pro se lawsuits in the preceding seven years, sued the same defendants for the same wrongs after losing, repeatedly filed meritless papers or used frivolous tactical 26 devices, or who has already been declared a vexatious litigant for similar reasons.” Wolfe v. George, 486 F.3d 1120, 1124-25 n.7 (9th Cir. 2007); Cal. Code Civ. Proc. §§ 391 et seq. Leave may be granted only if “it appears that the 27 litigation has merit and has not been filed for the purposes of harassment or delay.” Cal. Code Civ. Proc. § 391.7(b). The Court reserves consideration of plaintiff’s claims pursuant to the pre-filing order until after he has paid the filing 28 fee in this action. 1 I. Three Strikes Provision of 28 U.S.C. § 1915(g) 2 Proceedings in forma pauperis are governed by 28 U.S.C. § 1915. Section 1915(g) provides 3 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, on 4 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 5 in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 6 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 7 of serious physical injury.” 8 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 9 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (“Andrews”). “Pursuant to § 1915(g), a prisoner with three 10 strikes or more cannot proceed IFP [or in forma pauperis].” Id.; see also Andrews v. Cervantes, 493 11 F.3d 1047, 1052 (9th Cir. 2007) (“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly 12 brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]”). 13 The objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 14 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 15 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 16 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews, 17 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissal 18 as a denial of the prisoner's application to file the action without prepayment of the full filing fee.” 19 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated three 20 strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal court 21 unless he can show he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 22 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which 23 “make[ ] a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 24 at the time of filing”). 25 While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his 26 request to proceed IFP, Andrews, 398 F.3d at 1119, “[i]n some instances, the district court docket 27 records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under 28 1 § 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28 U.S.C. § 1915(g), 2 however, the court must “conduct a careful evaluation of the order dismissing an action, and other 3 relevant information,” before determining that the action “was dismissed because it was frivolous, 4 malicious or failed to state a claim,” since “not all unsuccessful cases qualify as a strike under § 5 1915(g).” Id. at 1121. 6 The Ninth Circuit has held that “the phrase ‘fails to state a claim on which relief may be 7 granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure 8 12(b)(6).’” Id. (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews 9 further holds that a case is “frivolous” for purposes of § 1915(g) “if it is of little weight or 10 importance” or “ha[s] no basis in law or fact.” 398 F.3d at 1121 (citations omitted); see also Neitzke 11 v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual 12 allegations and legal conclusions, is frivolous [under 28 U.S.C. § 1915] where it lacks an arguable 13 basis in either law or in fact....[The] term ‘frivolous,’ when applied to a complaint, embraces not 14 only the inarguable legal conclusion, but also the fanciful factual allegation.”). “A case is malicious 15 if it was filed with the intention or desire to harm another.” Andrews, 398 F.3d at 1121 (quotation 16 and citation omitted). 17 II. Discussion 18 A. Three Strikes 19 A review of the actions filed by plaintiff reveals that plaintiff is subject to 28 U.S.C. 20 § 1915(g) and is precluded from proceeding in forma pauperis unless plaintiff was, at the time the 21 complaint was filed, under imminent danger of serious physical injury. Court records reflect that 22 on at least three prior occasions plaintiff has brought actions while incarcerated that were dismissed 23 as frivolous, malicious, or for failure to state a claim upon which relief may be granted. The strikes 24 described in these cases all occurred prior to the filing of the present action. 25 • Hammler v. Kernan, Civil Case No. 3:18-cv-01170-DMS-NLS (S.D. Cal. Dec. 10, 2018 26 Order of dismissal for failure to state a claim and as frivolous) (strike one); 27 • Hammler v. Hough, Civil Case No. 3:18-cv-01319-LAB-BLM (S.D. Cal. May 24, 2019 28 1 Order of dismissal as frivolous and for failure to state a claim) (strike two); and 2 • Hammler v. Hudson, Civil Case No. 2:16-cv-1153-JAM-EFB-P (E.D. Cal. May 17, 2019 3 Order of dismissal for failure to exhaust administrative remedies) (strike three).2 4 B. Imminent Danger Exception 5 The Court has reviewed plaintiff’s complaint in this action and finds that it does not meet 6 the imminent danger exception. See Cervantes, 493 F.3d at 1053. Plaintiff alleges that since his 7 arrival at California State Prison in Corcoran, California in June 2019, plaintiff has been “unable 8 to maintain his personal hygiene and precluded from practicing health habits.” Plaintiff contends 9 that defendants violate institutional guidelines by refusing to provide him with “clean and sanitary 10 hair/facial trimmers clippers.” Instead, plaintiff is only allowed to use a set of hair clippers once a 11 month; this set is used by other inmates and is typically dirty. 12 Plaintiff also claims that his right to practice his religion is impinged by the defendants’ 13 refusal to provide him with use of clean hair clippers “for grooming of the body.” Though 14 officials offer razors, plaintiff states, without elaboration, that he is unable to use them. Plaintiff 15 had requested permission to purchase his own set of clippers from an approved vendor, but this 16 request was denied. Plaintiff next contends that defendants refuse to provide weekly clean 17 laundry. Though dirty clothes and bed sheets are exchanged weekly, plaintiff alleges that they are 18 not returned clean. Lastly, plaintiff claims that officials are not providing extra rations of soap and 19 cleaning supplies in the midst of the pandemic. 20 The availability of the imminent danger exception turns on the conditions a prisoner faced 21 at the time the complaint was filed, not at some earlier or later time. Bradford v. Kraus, No. 2:19- 22 cv-1753 DB, 2020 WL 738554, at *2 (E.D. Cal. Jan. 23, 2020), report and recommendation 23 adopted, No. 2:19-cv-1753-KJM-DB, 2020 WL 731114 (E.D. Cal. Feb. 13, 2020) (citing 24 Cervantes, 493 F.3d at 1053). Plaintiff’s allegations that he has not been provided a set of hair 25 clippers for personal use or that his laundry is returned unclean does not satisfy the imminent danger 26 exception. Neither does his vague allegation that he has not received extra rations of soap or 27 2 See El-Shaddai v. Zamora, No. 13-56104, 2016 WL 4254980 (9th Cir. Aug. 12, 2016) (a case counts as a strike 28 under § 1915(g) if failure to exhaust is evident on the face of complaint). 1 cleaning supplies. Imminent danger of serious physical injury must be a real, present threat, not 2 merely speculative or hypothetical. Speculation that plaintiff may experience serious side effects at 3 a later time is insufficient. The “imminent danger” exception is available “for genuine 4 emergencies,” where “time is pressing” and “a threat ...is real and proximate.” Lewis v. Sullivan, 5 279 F.3d 526, 531 (7th Cir. 2002). “Vague and utterly conclusory assertions” of harm are 6 insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). 7 Plaintiff has not provided “specific fact allegations of ongoing serious physical injury, or a 8 pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Bradford, 9 2020 WL 738554, at *2 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). His 10 allegations therefore fail to meet the imminent danger exception. Because plaintiff fails to 11 demonstrate that he meets the imminent danger exception to the three-strikes bar, this court will 12 recommend that plaintiff be required to pay the $400.00 filing fee for this case if he wishes to 13 proceed with this case. 14 III. Conclusion 15 Accordingly, the Court DIRECTS the Clerk of Court to assign a district judge to this case; 16 The Court RECOMMENDS that: 17 1. Pursuant to 28 U.S.C. § 1915(g), plaintiff be denied leave to proceed in this action in 18 forma pauperis under 28 U.S.C. § 1915(g); and 19 2. Plaintiff be required to pay the $400.00 filing fee in full within thirty days. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 fourteen days after the date of service of these Findings and Recommendations, Plaintiff may file 23 written objections with the Court. The document should be captioned “Objections to Magistrate 24 Judge’s Findings and Recommendations.” 25 /// 26 /// 27 /// 28 1 Plaintiff is advised that failure to file objections within the specified time may waive the 2 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4

5 Dated: November 9, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6

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