Penwell v. Washington State Department of Corrections

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TONY PENWELL, CASE NO. 2:21-cv-00547-DGE 11 Plaintiff, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION OF CORRECTIONS et al, 14 Defendant. 15 16 On April 23, 2021, Plaintiff, proceeding pro se, filed a civil rights action filed pursuant to 17 42 U.S.C. § 1983, federal statutes, and the Washington State Constitution alleging that 18 Defendants retaliated against him for his actions as a “tier rep,” including removing him from his 19 prison job and offering in replacement only jobs that were inconsistent with plaintiff’s disability 20 and religious beliefs. (Dkt. No. 1-1 at 5-27.) Plaintiff further alleges that Defendants failed to 21 properly process his grievances related to this issue, and that the manner of Defendants’ 22 assignment of jobs violated Plaintiff’s Fourteenth Amendment right to equal protection. (Id.) 23

24 1 On May 3, 2021, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”). 2 (Dkt. No. 6.) 3 On July 20, 2021, United States Magistrate Judge Theresa Fricke issued a report and 4 recommendation (“R&R”) recommending that Plaintiff be denied IFP status because he has

5 accumulated at least three “strikes” pursuant to 28 U.S.C. §1915(b) and did not demonstrate that 6 he was ““under imminent danger of serious physical injury” sufficient to warrant an exception to 7 the three strikes provision. (Dkt. No. 8.) 8 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915, governs in forma 9 pauperis (“IFP”) proceedings. The Court may permit indigent litigants to proceed in forma 10 pauperis upon completion of a proper affidavit of indigency under 28 U.S.C. § 1915(a)—but, the 11 Court has broad discretion in denying an application to proceed in forma pauperis. Weller v. 12 Dickson, 314 F.2d 598, 600 (9th Cir. 1963). 13 Under § 1915(a), a district court may waive the filing fee for civil complaints by granting 14 IFP status to individuals unable to afford the fee. Andrews v. Cervantes, 493 F.3d 1047, 1051–

15 52 (9th Cir. 2007). “To address concerns that prisoners proceeding IFP were burdening the 16 federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for prisoners in an 17 effort to discourage such suits.” (Id.) (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd 18 Cir. 2001) (en banc)). 19 Indigent prisoners still receive IFP status if they meet the requirements, but according to 20 § 1915(b), prisoners who seek to proceed IFP must pay the filing fee when funds become 21 available in their prison accounts. 28 U.S.C. §1915(b); Cervantes, 493 F.3d at 1051. 22 “Additionally, prisoners who have repeatedly brought unsuccessful suits may entirely be barred 23 from IFP status under the three-strikes rule.” Cervantes, 493 F.3d at 1051-52.

24 1 The “three-strikes rule,” contained in §1915(g) provides that: “[i]n no event shall a 2 prisoner bring a civil action under this section if the prisoner has, on 3 or more prior occasions, 3 while incarcerated or detained in any facility, brought an action or appeal in a court of the United 4 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

5 upon which relief may be granted, unless the prisoner is under imminent danger of serious 6 physical injury.” 7 The PLRA’s strike provision does not distinguish between dismissals with prejudice, 8 dismissals without prejudice, actions dismissed on the merits, or actions dismissed pursuant to 9 the PLRA’s screening provisions. O’Neal v. Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008). 10 When an application is rejected pursuant to the screening provisions of 28 U.S.C. § 1915 and the 11 case is dismissed, the dismissal counts as a strike. (Id. at 1155.) 12 Here, Judge Fricke cited three cases filed by Plaintiff in this Court that were dismissed 13 for failure to state a claim upon which relief could be granted. (Dkt. No. 8 at 3-4.) 14 Plaintiff does not deny that these cases constitute “strikes” as defined by § 1915(g) but

15 argues that these cases had merit and would have been successful had he been able to articulate 16 himself properly at the time. (Dkt. No. 9 at 1-2.) Plaintiff contends that he has filed successful 17 claims, and argues for the creation of a “strike buy back” program that would allow prisoners to 18 erase strikes from their records once they pay their outstanding IFP debts. (Id. at 4.) Plaintiff 19 further argues that the law should permit prisoners to proceed IFP to prevent both physical and 20 mental harm. (Dkt. No. 10 at 1-3.) 21 Whatever the merits of Plaintiff’s proposals, the Court does not have the authority to 22 create a program like the one Plaintiff suggests, nor is it able to unilaterally amend 28 U.S.C. § 23 1915(g) to include imminent mental injury as an exception to the three strikes rule.

24 1 The Court, having reviewed Plaintiff’s complaint, the Report and Recommendation of the 2 Honorable Theresa Fricke, United States Magistrate Judge, any objections thereto, and the 3 remaining record, hereby finds and ORDERS as follows: 4 (1) The Report and Recommendation is ADOPTED;

5 (2) Plaintiff’s application to proceed IFP (Dkt. No. 6) is DENIED. 6 (3) Plaintiff is directed to pay the $402.00 filing fee within thirty (30) days of this Order. 7 Failure to timely submit the requisite fee will result in dismissal of this case without 8 prejudice. 9 (4) As Plaintiff has incurred three strikes under 28 U.S.C. § 1915(g), the Court finds 10 Plaintiff may not proceed with IFP status in the event of any appeal. 11 (5) The Clerk is directed to send copies of this Order to Plaintiff. 12 13 Dated this 3rd day of February, 2022. 14 A 15 David G. Estudillo 16 United States District Judge

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