(PC) Stephen v. Montejo

District Court, E.D. California·Decided June 12, 2020·No. 2:18-cv-01796·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMIE STEPHEN, No. 2:18-cv-01796 KJM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 E. MONTEJO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis (“IFP”) with a civil 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant was deliberately 19 indifferent to his serious medical needs in violation of the Eighth Amendment. Before the court 20 is defendant’s motion to revoke plaintiff’s IFP status. For the reasons set forth below, this court 21 will recommend defendant’s motion be granted. 22 BACKGROUND 23 Plaintiff filed his original complaint here on June 22, 2018. (ECF No. 1.) On screening, 24 this court found plaintiff failed to state any cognizable claims for relief and gave plaintiff leave to 25 file an amended complaint. (ECF No. 6.) In considering plaintiff’s motion to proceed IFP, this 26 court found plaintiff had accrued over three strikes under 28 U.S.C. § 1915(g), preventing him 27 from proceeding IFP unless he could show he was in imminent danger of serious physical harm. 28 //// 1 This court then found that plaintiff’s allegations were, liberally construed, minimally sufficient to 2 meet the imminent danger standard. (Id. at 2-3.) 3 Since then, plaintiff has filed three amended complaints. This case is proceeding on 4 plaintiff’s claims against defendant Montejo in the third amended complaint regarding Montejo’s 5 treatment of plaintiff’s chronic kidney disease (“CKD”) and prostate. (ECF Nos. 61, 74.) 6 On April 29, 2020, defendant filed the present motion to revoke plaintiff’s IFP status and 7 a request for judicial notice. (ECF Nos. 77, 78.) Plaintiff filed an opposition (ECF No. 81) and 8 defendant filed a reply (ECF No. 84). 9 MOTION TO REVOKE IFP STATUS 10 I. Legal Standards 11 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 12 the commencement and prosecution of any suit without prepayment of fees by a person who 13 submits an affidavit indicating that the person is unable to pay such fees. However, 14 [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, 15 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 16 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 17 prisoner is under imminent danger of serious physical injury. 18 28 U.S.C. § 1915(g). 19 This “three strikes rule” was part of “a variety of reforms designed to filter out the bad 20 claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 21 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has 22 three strikes under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he 23 meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 24 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a three-strikes 25 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 26 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 27 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 28 //// 1 Imminent danger of serious physical injury must be a real, present threat, not merely 2 speculative or hypothetical. Andrews, 493 F.3d at 1057 n. 11. To meet his burden under § 3 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a 4 pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 5 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 6 are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the 7 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 8 and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 9 Courts need “not make an overly detailed inquiry into whether the allegations qualify for 10 the exception.” Andrews, 493 F.3d at 1055; see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th 11 Cir. 2003) (“[Section] 1915(g) is not a vehicle for determining the merits of a claim.... [T]o fine- 12 tune what is ‘serious enough’ to qualify for the exception ... would result in a complicated set of 13 rules about what conditions are serious enough, all for a simple statutory provision governing 14 when a prisoner must pay the filing fee for his claim. This is not required....”). Rather, the court 15 should liberally construe the pro se plaintiff’s allegations to determine whether he has plausibly 16 alleged imminent danger and apply the exception in a manner that makes “practical sense.” 17 Andrews, 493 F.3d at 1055. 18 II. Analysis 19 This court previously found that plaintiff suffered more than three strikes under 28 U.S.C. 20 § 1915(g) before he initiated this action. (ECF No. 6 at 2-3.) That finding has not been 21 challenged. The only issue is whether this court’s previous finding that plaintiff adequately 22 demonstrated imminent danger of serious physical injury should be revisited. 23 Defendant argues that plaintiff “failed to plead facts sufficient to support a plausible 24 inference that the treatment Dr. Montejo provided (or failed to provide) for CKD posed a 25 substantially serious risk of harm that was imminent when he filed suit.” (ECF No. 77-1 at 9.) 26 Defendant asks this court to consider the fact that doctors recently determined that plaintiff does 27 not suffer from CKD and various medical facts regarding plaintiff’s kidney health. 28 //// 1 Defendant’s motion raises two issues regarding the proper application of the imminent 2 danger exception. The first issue is whether imminent danger should be evaluated at the time 3 plaintiff filed this action or whether it should be evaluated as of the time the operative complaint 4 was filed. The second issue is whether this court may consider evidence outside the allegations of 5 the relevant complaint. For the reasons set forth below, this court finds it must consider whether 6 plaintiff has established he was in imminent danger at the time he filed this action in June 2018 7 and that it may consider a limited amount of additional evidence in making this determination. 8 A. Relevant Time Period for Purposes of the Imminent Danger Exception 9 The exception to § 1915(g) permitting a prisoner to proceed in forma pauperis despite 10 having three or more strikes against him “applies if the complaint makes a plausible allegation 11 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” 12 Andrews, 493 F.3d at 1055.

Free access — add to your briefcase to read the full text and ask questions with AI

(PC) Stephen v. Montejo, (E.D. Cal. 2020).

(PC) Stephen v. Montejo ((PC) Stephen v. Montejo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Denton v. Hernandez
504 U.S. 25 (Supreme Court, 1992)
Woodford v. Ngo
548 U.S. 81 (Supreme Court, 2006)
Jones v. Bock
549 U.S. 199 (Supreme Court, 2007)
Taylor v. Watkins
623 F.3d 483 (Seventh Circuit, 2010)
United States v. Gary Evans Jackson
480 F.3d 1014 (Ninth Circuit, 2007)
Marcus Ellington v. D. Runnels
479 F. App'x 762 (Ninth Circuit, 2012)
Andrews v. Cervantes
493 F.3d 1047 (Ninth Circuit, 2007)
Lonnie Williams, Jr. v. Daniel Paramo
775 F.3d 1182 (Ninth Circuit, 2015)
Shepherd v. Annucci
921 F.3d 89 (Second Circuit, 2019)