1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IMMANUEL CHRISTIAN PRICE, No. 2: 20-cv-1439 TLN KJN P 12 Plaintiff, 13 v. ORDER and FINDINGS AND RECOMMENDATIONS 14 Z. IGBAL, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner, proceeds without counsel and with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to revoke plaintiff’s in 19 forma pauperis status pursuant to 28 U.S.C. § 1915(g). (ECF No. 25.) For the reasons stated 20 herein, the undersigned recommends that defendants’ motion be denied. 21 Background 22 This action proceeds on plaintiff’s July 17, 2020 complaint alleging that while he was 23 housed at High Desert State Prison, defendants were deliberately indifferent to plaintiff’s serious 24 medical needs by refusing to continue his prescription of gabapentin, which he was previously 25 prescribed for two years for his neuropathic pain resulting from chemotherapy treatment, and 26 after the failure of numerous alternative pain medications. (ECF No. 1.) Plaintiff’s complaint 27 was filed while he was housed at California State Prison, Los Angeles. (ECF No. 1 at 1.) 28 //// 1 In addition to their motion to revoke, defendants filed a request for judicial notice. (ECF 2 No. 25-2.) Following the filing of defendants’ motion to revoke, plaintiff was granted an 3 extension of time to file an opposition, which he filed on April 5, 2021. (ECF No. 28.) On April 4 8, 2021, defendants filed a reply. (ECF No. 29.) On April 9, 2021, plaintiff filed a request for 5 judicial notice. (ECF No. 30.) 6 Requests for Judicial Notice 7 Defendants ask the court to take judicial notice of plaintiff’s court filings. A court may 8 take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 9 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without 10 the federal judicial system, if those proceedings have a direct relation to matters at issue”) 11 (internal quotation omitted). Defendants’ request is granted. 12 On the other hand, plaintiff asks the court to take judicial notice of a document: CDCR 13 Patient Education Notes on “Peripheral Neuropathy.” (ECF No. 30 at 1.) Plaintiff cites no 14 authority to support his request, but contends the document “could give the Court a better 15 understanding of plaintiff’s imminent danger claim.” (Id.) 16 In Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003), the Ninth Circuit took judicial 17 notice of the facts that diabetes is a serious medical condition that can produce harmful 18 consequences. These are general medical facts that are not subject to reasonable dispute. 19 Similarly, in the present case, this court can take judicial notice of facts describing peripheral 20 neuropathy which support plaintiff’s claim that peripheral neuropathy is a serious medical need. 21 This court cannot, however, take judicial notice of the symptoms or treatment contained therein, 22 because different people have different symptoms, and the treatment for such condition is 23 disputed in this action. This court may not take judicial notice of a fact that is in dispute. 24 Therefore, plaintiff’s request for judicial notice is partially granted, solely as to the fact that 25 peripheral neuropathy constitutes a serious medical need. (ECF No. 30.) 26 Governing Standards 27 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 28 the commencement and prosecution of any suit without prepayment of fees by a person who 1 submits an affidavit indicating that the person is unable to pay such fees. However, a prisoner 2 may not proceed in forma pauperis 3 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 4 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 5 be granted, unless the prisoner is under imminent danger of serious physical injury. 6 7 28 U.S.C. § 1915(g). 8 Such rule, known as the “three strikes rule,” was “designed to filter out the bad claims 9 [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 575 U.S. 10 532, 535 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has “three 11 strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he 12 meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 13 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 14 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 15 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 16 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 17 Discussion 18 In the motion to revoke, defendants argue that plaintiff had at least three prior actions 19 dismissed because they failed to state a claim, or were frivolous or malicious. Indeed, as noted by 20 defendants, plaintiff admits in his complaint that before he filed the instant action he sustained at 21 least three strikes under 28 U.S.C. § 1915(g). (ECF No. 1 at 11.) The Court of Appeals for the 22 Ninth Circuit has twice deemed plaintiff a three strikes litigant: Price v. Wright, No. 18-16682 23 (9th Cir. Dec. 19, 2018), and Price v. Lamb, No. 18-16681 (9th Cir. Dec. 20, 2018) (ECF No. 25- 24 2 at 4). 25 In addition to these two appellate cases, defendants identify the following three cases that 26 constitute § 1915(g) strikes: 27 1. Price v. San Diego County Jail, No. 3:16-cv-0668 (S.D. Cal. Aug. 1, 2016), dismissed 28 for failure to state a claim (ECF No. 25-2 at 20); 1 2. Price v. Scott, No. 3:16-cv-0411 (S.D. Cal. Feb. 28, 2017), dismissed for failure to 2 state a claim (ECF No. 25-2 at 32); and 3 3. Price v. Scott, No. 17-55336 (9th Cir. June 14, 2017), dismissed as frivolous (ECF No. 4 25-2 at 37). 5 Thus, because defendants demonstrated, and plaintiff concedes, that plaintiff sustained at 6 least three strikes under 28 U.S.C. § 1915(g), plaintiff may not proceed in forma pauperis in this 7 action unless plaintiff demonstrates that at the time he filed the instant action, he was “under 8 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 9 Imminent Danger 10 The availability of the imminent danger exception turns on the conditions a prisoner faced 11 at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 12 493 F.3d 1047, 1053 (9th Cir. 2007). Imminent danger of serious physical injury must be a real, 13 present threat, not merely speculative or hypothetical.
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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 IMMANUEL CHRISTIAN PRICE, No. 2: 20-cv-1439 TLN KJN P 12 Plaintiff, 13 v. ORDER and FINDINGS AND RECOMMENDATIONS 14 Z. IGBAL, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner, proceeds without counsel and with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to revoke plaintiff’s in 19 forma pauperis status pursuant to 28 U.S.C. § 1915(g). (ECF No. 25.) For the reasons stated 20 herein, the undersigned recommends that defendants’ motion be denied. 21 Background 22 This action proceeds on plaintiff’s July 17, 2020 complaint alleging that while he was 23 housed at High Desert State Prison, defendants were deliberately indifferent to plaintiff’s serious 24 medical needs by refusing to continue his prescription of gabapentin, which he was previously 25 prescribed for two years for his neuropathic pain resulting from chemotherapy treatment, and 26 after the failure of numerous alternative pain medications. (ECF No. 1.) Plaintiff’s complaint 27 was filed while he was housed at California State Prison, Los Angeles. (ECF No. 1 at 1.) 28 //// 1 In addition to their motion to revoke, defendants filed a request for judicial notice. (ECF 2 No. 25-2.) Following the filing of defendants’ motion to revoke, plaintiff was granted an 3 extension of time to file an opposition, which he filed on April 5, 2021. (ECF No. 28.) On April 4 8, 2021, defendants filed a reply. (ECF No. 29.) On April 9, 2021, plaintiff filed a request for 5 judicial notice. (ECF No. 30.) 6 Requests for Judicial Notice 7 Defendants ask the court to take judicial notice of plaintiff’s court filings. A court may 8 take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 9 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without 10 the federal judicial system, if those proceedings have a direct relation to matters at issue”) 11 (internal quotation omitted). Defendants’ request is granted. 12 On the other hand, plaintiff asks the court to take judicial notice of a document: CDCR 13 Patient Education Notes on “Peripheral Neuropathy.” (ECF No. 30 at 1.) Plaintiff cites no 14 authority to support his request, but contends the document “could give the Court a better 15 understanding of plaintiff’s imminent danger claim.” (Id.) 16 In Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003), the Ninth Circuit took judicial 17 notice of the facts that diabetes is a serious medical condition that can produce harmful 18 consequences. These are general medical facts that are not subject to reasonable dispute. 19 Similarly, in the present case, this court can take judicial notice of facts describing peripheral 20 neuropathy which support plaintiff’s claim that peripheral neuropathy is a serious medical need. 21 This court cannot, however, take judicial notice of the symptoms or treatment contained therein, 22 because different people have different symptoms, and the treatment for such condition is 23 disputed in this action. This court may not take judicial notice of a fact that is in dispute. 24 Therefore, plaintiff’s request for judicial notice is partially granted, solely as to the fact that 25 peripheral neuropathy constitutes a serious medical need. (ECF No. 30.) 26 Governing Standards 27 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 28 the commencement and prosecution of any suit without prepayment of fees by a person who 1 submits an affidavit indicating that the person is unable to pay such fees. However, a prisoner 2 may not proceed in forma pauperis 3 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 4 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 5 be granted, unless the prisoner is under imminent danger of serious physical injury. 6 7 28 U.S.C. § 1915(g). 8 Such rule, known as the “three strikes rule,” was “designed to filter out the bad claims 9 [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 575 U.S. 10 532, 535 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has “three 11 strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he 12 meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 13 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 14 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 15 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 16 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 17 Discussion 18 In the motion to revoke, defendants argue that plaintiff had at least three prior actions 19 dismissed because they failed to state a claim, or were frivolous or malicious. Indeed, as noted by 20 defendants, plaintiff admits in his complaint that before he filed the instant action he sustained at 21 least three strikes under 28 U.S.C. § 1915(g). (ECF No. 1 at 11.) The Court of Appeals for the 22 Ninth Circuit has twice deemed plaintiff a three strikes litigant: Price v. Wright, No. 18-16682 23 (9th Cir. Dec. 19, 2018), and Price v. Lamb, No. 18-16681 (9th Cir. Dec. 20, 2018) (ECF No. 25- 24 2 at 4). 25 In addition to these two appellate cases, defendants identify the following three cases that 26 constitute § 1915(g) strikes: 27 1. Price v. San Diego County Jail, No. 3:16-cv-0668 (S.D. Cal. Aug. 1, 2016), dismissed 28 for failure to state a claim (ECF No. 25-2 at 20); 1 2. Price v. Scott, No. 3:16-cv-0411 (S.D. Cal. Feb. 28, 2017), dismissed for failure to 2 state a claim (ECF No. 25-2 at 32); and 3 3. Price v. Scott, No. 17-55336 (9th Cir. June 14, 2017), dismissed as frivolous (ECF No. 4 25-2 at 37). 5 Thus, because defendants demonstrated, and plaintiff concedes, that plaintiff sustained at 6 least three strikes under 28 U.S.C. § 1915(g), plaintiff may not proceed in forma pauperis in this 7 action unless plaintiff demonstrates that at the time he filed the instant action, he was “under 8 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 9 Imminent Danger 10 The availability of the imminent danger exception turns on the conditions a prisoner faced 11 at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 12 493 F.3d 1047, 1053 (9th Cir. 2007). Imminent danger of serious physical injury must be a real, 13 present threat, not merely speculative or hypothetical. To meet this exception, the complaint of a 14 “three-strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of 15 serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 16 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 17 Courts have stressed that allegations of imminent danger must be supported by specific, 18 credible allegations of harm. McNeil v. United States, 2006 WL 581081 (W.D. Wash. Mar. 8, 19 2006), by allegations showing that the danger faced is “real, proximate, and/or ongoing,” 20 Andrews, 493 F.3d at 1056, and by allegations that are not speculative, Brown v. Newsom, 2019 21 WL 2387762, at *1 (E.D. Cal. June 6, 2019). Plaintiff must have shown that he faced a “genuine 22 emergency” and “time [was] pressing.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 23 Plaintiff declares that at the time he filed the instant action, he was experiencing untreated 24 neuropathic pain and mobility issues due to neuropathy which he fears will cause him to suffer a 25 fall which could cause serious injury. He also suffers severe tingling burning and numbness in 26 his hands and feet that make walking and writing difficult and at times lead to loss of balance 27 when walking or the inability to grip things with his hands. (ECF No. 28 at 7.) Plaintiff states he 28 “may be required to walk up steps or climb to a top bunk . . . and be seriously injured.” (ECF No. 1 28 at 6.) Plaintiff claims that he is still not being treated for neuropathy as Nurse Practitioner 2 Kehinde only offered medications plaintiff previously tried but were ineffective. 3 Taking plaintiff’s allegations as true, plaintiff plausibly alleges that he was under 4 imminent danger of serious physical injury at the time he filed his complaint, and that such risk is 5 ongoing. Plaintiff suffers neuropathic pain, severe tingling, burning and numbness in his hands 6 and feet that make walking difficult, and make him susceptible to falling. Despite being 7 prescribed Gabapentin by doctors at three previous prisons, where such drug was demonstrated to 8 be effective, plaintiff alleges defendant Dr. Iqbal tapered plaintiff off Gabapentin solely based on 9 an April 18, 2019 memo by David Ralston, M.D., Chair of the Systemwide Pharmacy and 10 Therapeutics Committee, which urged health care providers to limit the prescription of 11 Gabapentin to the FDA approved uses, as clinically appropriate. (ECF No. 1 at 6.) Plaintiff 12 asserts that Dr. Iqbal discontinued plaintiff’s Gabapentin prescription solely because it was 13 nonformulary. (ECF No. 1 at 27.) Plaintiff notes that doctor at other prisons did not cut off 14 plaintiff’s prescription to Gabapentin based on such memo. In addition, plaintiff alleges that the 15 alternative medications defendants offered were previously tried but found to be ineffective. 16 Plaintiff’s allegation that he suffers untreated neuropathic pain and is at risk of falling is 17 sufficient to support an inference of imminent danger of serious physical jury. See Womack v. H. 18 Tate, 2020 WL 2020 WL 3799205 (9th Cir. May 19, 2020) (“the district court improperly denied 19 appellant’s request to proceed in forma pauperis because appellant made plausible allegations that 20 he was “under imminent danger of serious physical injury” at the time he lodged the complaint, 21 28 U.S.C. § 1915(g), including that appellant was in excruciating pain and that defendants had 22 discontinued appellant’s pain medication and mobility vest ordered by a doctor at the facility 23 where appellant was previously housed.”) 24 Therefore, plaintiff meets the imminent danger exception described in 28 U.S.C. 25 § 1915(g), and may proceed in forma pauperis. Respondent’s motion should be denied. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. Defendants’ request for judicial notice (ECF No. 25-2) is granted; and 28 2. Plaintiff’s request for judicial notice (ECF No. 30) is partially granted. 1 Further, IT IS RECOMMENDED that: 2 1. Defendants’ motion to revoke plaintiff’s in forma pauperis status (ECF No. 25) be 3 | denied; and 4 2. Defendants Rueter, Iqbal and Gates be directed to file a responsive pleading within 5 || twenty-one days. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 || objections shall be filed and served within fourteen days after service of the objections. The 12 | parties are advised that failure to file objections within the specified time may waive the right to 13 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: July 9, 2021 Aectl Aharon 16 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 17 18 fpric1439.mtd.1915 19 20 21 22 23 24 25 26 27 28