Stuckey v. Sturdevant

• Court: District Court, N.D. California
• Decided: March 1, 2021
• Docket: 4:20-cv-01898
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 ANDRE KENNETH STUCKEY, 6 Case No. 20-cv-01898-YGR (PR) Plaintiff, 7 ORDER REOPENING ACTION; v. LIFTING STAY; AND DIRECTING 8 PLAINTIFF TO SHOW CAUSE WHY C. STURDEVANT, (1) HIS IFP STATUS SHOULD NOT BE 9 REVOKED AND (2) THIS ACTION Defendant. SHOULD NOT BE DISMISSED 10 PURSUANT TO 28 U.S.C. § 1915

11 I. BACKGROUND 12 Plaintiff, a state prisoner currently incarcerated at Pelican Bay State Prison (“PBSP”), filed 13 a pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendant PBSP Correctional 14 Officer C. Sturdevant. 15 On October 30, 2020, the Court granted Plaintiff’s motion for leave to proceed in forma 16 pauperis (“IFP”). Dkt. 5. On the same date, the Court issued an Order of Service. Dkt. 6. The 17 following background is taken from the Court’s October 30, 2020 Order, which states as follows:

18 In his complaint, Plaintiff sues Defendant Sturdevant individually and in his official capacity. Dkt. 1 at 1.1 Plaintiff alleges that Defendant 19 Sturdevant discriminated and treated him differently because of his race. Id. at 5-6. Specifically, Plaintiff claims that on April 16, 2019 20 at approximately 5:00 p.m., he requested Defendant Sturdevant to release him to the education department so he could attend his college 21 class. Id. at 5. Plaintiff claims that Defendant Sturdevant stated, “I don[’]t let niggers go to school.” Id. When Plaintiff asked Defendant 22 Sturdevant what he said, Defendant Sturdevant replied, “You heard me now go back to your cell Nigger, that will teach you not to file [a] 23 602 [appeal] on Ford.2” Id. Then, on July 9, 2019 at approximately 24 1 Page number citations refer to those assigned by the Court’s electronic case management 25 filing system and not those assigned by Plaintiff.

26 2 In Case No. 19-cv-03691-YGR (PR), Plaintiff alleged that he was “subjected to cruel and unusual punishment as a result of a campaign of harassment, mail tampering, conspiracy and 27 retaliatory actions against him over a two-year ongoing period, at the hands of” various 11:30 a.m., Plaintiff asked Defendant Sturdevant, who was the control 1 booth operator, to release him for his “11:30 law library ducat [i.e., permission slip] . . . .” Id. at 6. Defendant Sturdevant refused to 2 release Plaintiff, and stated: “I’m not letting you out for law library now put that in your 602 [appeal].” Id. Fifteen minutes later, 3 Defendant Sturdevant opened Plaintiff’s cell and said, “The law library lady just called for you but I’m still not letting you out nigger 4 now put that in your 602 [appeal].” Id. Plaintiff claims that he “missed his scheduled law library appointment as a result of 5 [Defendant Sturdevant’s] racist actions of refusing to allow [Plaintiff] to attend his appointment based on race and retaliatory reasons.” Id. 6 at 7. 7 Dkt. 6 at 2 (footnotes in original). The Court dismissed with prejudice Plaintiff’s claim against 8 Defendant Sturdevant in his official capacity for monetary damages. Id. at 2-3. The Court found 9 that, liberally construed, the complaint alleged an Equal Protection claim for damages against 10 Defendant Sturdevant for discriminating against Plaintiff based on his aforementioned actions. Id. 11 at 3. The Court then ordered service on Defendant Sturdevant. Id. at 3. 12 Defendant Sturdevant’s waiver of service was filed on November 23, 2020. Dkt. 8. 13 In an Order dated December 11, 2020, the Court referred this action and Plaintiff’s other 14 pending matters to the Pro Se Prisoner Mediation Program and stayed these cases pending global 15 settlement proceedings. Dkt. 10. The Order stated that, if necessary, the Court will issue a further 16 briefing scheduling after the settlement proceedings. 17 On February 11, 2021, the Honorable Judge Robert M. Illman notified the Court that the 18 parties were unable to reach an agreement. Dkt. 14. Accordingly, the Court hereby LIFTS the 19 stay in the instant action, and the Clerk of the Court shall REOPEN the case file. 20 The parties are presently before the Court on Defendant Sturdevant’s motion to revoke 21 Plaintiff’s IFP status, pursuant to 28 U.S.C. § 1915(g). Defendant Sturdevant further argues that 22 “[s]hould the Court revoke [Plaintiff’s] IFP status, and vacate its October 30, 2020 Order granting 23 IFP (ECF No. 5), [Plaintiff] case still pursue his action if he is able to pay his filing fee,” but if he 24 fails to do so, “his case must be dismissed and further briefing will be unnecessary.” Dkt. 13 at 5. 25 Having read and considered the papers submitted, and being fully informed, the Court 26 directs Plaintiff to show cause why his IFP status should not be revoked and this action should not 27 be dismissed pursuant to 28 U.S.C. § 1915(g) II. DISCUSSION 1 A. 28 U.S.C. § 1915(g) 2 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 3 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 4 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 5 facility, brought an action or appeal in a court of the United States that was dismissed on the 6 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 7 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 8 Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as 9 after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 10 Section 1915(g) is commonly referred to as the “three strikes rule.” The three strikes rule 11 “requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts 12 may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 13 2001). 14 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 15 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 16 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 17 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 18 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 19 1121 (9th Cir. 2005) (citation omitted) (“Andrews I”). Only cases within one of these three 20 categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action 21 under section 1915(g) should only occur when, “after careful evaluation of the order dismissing an 22 [earlier] action, and other relevant information, the district court determines that the action was 23 dismissed because it was frivolous, malicious or failed to state a claim.” Id. 24 Andrews I requires that the prisoner be given notice of the potential applicability of 25 section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear 26 the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id. A 27 defendant seeking to challenge a prisoner’s IFP status has the burden of producing evidence that 1 allows the district court to conclude that the prisoner plaintiff has suffered at least three prior 2 dismissals that count as strikes under section 1915(g). Id. at 1120. Once the defendants have met 3 this initial burden, the burden shifts to the prisoner to show why a prior dismissal should not count 4 as a strike, or why he is entitled to the imminent danger of serious physical injury exception. Id. 5 A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as 6 a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at 7 the outset of the action. See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming 8 district court’s denial of IFP status and dismissing complaint without prejudice under section 9 1915(g)). 10 B. Plaintiff’s Prior “Strikes” 11 Defendant alleges that Plaintiff has filed, while incarcerated, one action in this district and 12 at least two other actions in the United States District Court for the Central District of California 13 that were dismissed on the basis that they were frivolous, malicious, or failed to state claim. At 14 the time Plaintiff was granted leave to proceed IFP, the Court was unaware that Plaintiff had filed 15 some of these cases or the basis of the dismissals of any such cases in other districts, i.e., the 16 United States District Court for the Central District of California. 17 This Court GRANTS Defendants’ request for judicial notice of the court documents 18 provided in support of the motion to revoke IFP.3 Dkt. 13-1. Defendant argues that the following 19 dismissals may be counted as dismissals for purposes of section 1915(g): (1) Stuckey v. Grebinski, 20 No. 2:12-cv-06875 (C.D. Cal.); (2) Stuckey v. Grebinski, No. 2:12-cv-08438 (C.D. Cal.); and 21 (3) Stuckey v. Trump, et al., Case No. 19-cv-03688 (N.D. Cal.). See Dkt. 13 at 2-3; Dkt. 13-1 at 4- 22 21 (Exs. A-C). 23 Only three prior dismissals need qualify under section 1915(g). This Court must review at 24

25 3 The district court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” 26 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations omitted) (granting request to take judicial notice in section 1983 action of five prior cases in which 27 plaintiff was pro se litigant, to counter her argument that she deserved special treatment because of 1 least three dismissals to determine whether they qualify as strikes under section 1915(g). See 2 Andrews I, 398 F.3d at 1121. Here, the Court will review all three dismissals in the 3 aforementioned cases, which were all entered before the instant action was brought by Plaintiff on 4 March 18, 2020, in order to determine whether they may be counted as dismissals for purposes of 5 section 1915(g). As further explained below, these dismissals all qualify as “strikes” under 6 section 1915(g). See id. 7 1. Case Nos. 2:12-cv-06875 and 2:12-cv-08438 – First and Second Strikes 8 On November 16, 2012, in Stuckey v. Grebinski, No. 2:12-cv-06875 (C.D. Cal.), the 9 magistrate judge recommended to deny Plaintiff’s request to proceed IFP because his complaint 10 was “frivolous, malicious, and fail[ed] to state a claim for relief.” Dkt. 13-1 at 7 (Ex. A). The 11 magistrate judge specifically stated that: “This denial may constitute a strike under the ‘Three 12 Strikes’ provision governing the filing of prisoner suits. 28 U.S.C. § 1915(g); see O’Neal v. Price, 13 531 F.3d 1146, 1153 (9th Cir. 2008).” Id. On November 21, 2012, the Central District adopted 14 the magistrate judge’s findings and recommendations and denied Plaintiff’s request to proceed 15 IFP. Id. at 6. 16 Meanwhile, on January 10, 2013, in Stuckey v. Grebinski, No. 2:12-cv-08438 (C.D. Cal.), 17 the magistrate judge recommended to deny Plaintiff’s request to proceed IFP for the same reasons 18 as Case No. 2:12-cv-06875. Id. at 12. The magistrate judge also specifically stated that: “This 19 denial may constitute a strike under the ‘Three Strikes’ provision governing the filing of prisoner 20 suits. 28 U.S.C. § 1915(g); see O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).” Id. On 21 January 15, 2013, the Central District adopted the magistrate judge’s findings and 22 recommendations and denied Plaintiff’s request to proceed IFP. Id. at 11. 23 The Ninth Circuit has held that a case is “dismissed” for the purposes of section 1915(g) 24 “when the court denies the prisoner’s application to file the action without prepayment of the 25 filing fee on the ground that the complaint is frivolous, malicious or fails to state a claim, and 26 thereupon terminates the complaint.” See O’Neal, 531 F.3d at 1152. When a district court 27 disposes of an IFP complaint on such grounds, the complaint is “dismissed” for the purposes of 1 application to file the action without prepayment of the full filing fee.” Id. at 1153 (finding that 2 the district court necessarily reviewed the complaints and made an assessment on their merits in 3 making the determination whether the actions qualified for IFP status). This was indeed the case 4 in both Case Nos. 2:12-cv-06875 and 2:12-cv-08438 wherein the district judges of the Central 5 District adopted the magistrate judges’ findings and recommendations and denied Plaintiff’s 6 requests to proceed IFP because the complaints were frivolous. Dkt. 13-1 at 6, 11. Therefore, the 7 aforementioned decisions in Case Nos. 2:12-cv-06875 and 2:12-cv-08438 constitute qualifying 8 strikes under section 1915(g). See Andrews I, 398 F.3d at 1120. 9 2. Case No. 19-cv-03688 (N.D. Cal.) – Third Strike 10 In Stuckey v. Trump, et al., No. 19-cv-03688 (N.D. Cal.), this Court dismissed this action 11 on January 29, 2020, upon finding that Plaintiff’s claims were frivolous and that he failed to state 12 a claim upon which relief could be granted. Dkt. 13-1 at 19-21. Defendant again argues that the 13 Court’s dismissal for failure to state a claim in Case No. 19-cv-03688 constitutes an additional 14 strike for the purposes of section 1915. Dkt. 13 at 3. The Court has confirmed that Case No. 19- 15 cv-03688 was in fact dismissed as being frivolous and for failure to state a claim upon which relief 16 may be granted. Dkt. 14 at 2-4 in Case No. 19-cv-03688. Plaintiff appealed the dismissal. Dkt. 17 16 in Case No. 19-cv-03688. The appeal was dismissed as “frivolous” by the Ninth Circuit in 18 Case No. 20-15372. Dkt. 21 in Case No. 19-cv-03688. Therefore, Defendant has met the burden 19 of establishing that Case No. 19-cv-03688 counts as a strike. See Andrews I, 398 F.3d at 1120. 20 In sum, Plaintiff’s three aforementioned dismissals constitute “strikes” under section 21 1915(g). Thus, Plaintiff’s IFP status must be revoked unless he can show that he is entitled to the 22 imminent danger of serious physical injury exception under section 1915(g). 23 C. Imminent Danger Exception 24 A plaintiff barred from bringing an action IFP because he has three strikes may still 25 proceed without prepaying court fees if he can show he is “under imminent danger of serious 26 physical injury.” 28 U.S.C. § 1915(g). The availability of the exception turns on the “conditions a 27 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 1 procedural” question, the Ninth Circuit has indicated that district courts should not conduct an 2 overly detailed inquiry into whether a particular danger is serious enough under the serious 3 physical injury prong. Id. at 1055. Rather, “the exception applies if the complaint makes a 4 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 5 of filing.” Id. In order to satisfy the imminence prong, the prisoner must allege that the danger is 6 ongoing. See id. at 1056-57. 7 A district court should liberally construe the allegations in a complaint filed by a pro se 8 prisoner facing a section 1915(g) bar. See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 9 2002) (liberally construing allegations in complaint for initial determination of whether prisoner is 10 under imminent danger of serious physical injury). It is sufficient if any part of the complaint 11 plausibly alleges that the prisoner is in imminent danger of serious physical injury at the time of 12 filing. Andrews II, 493 F.3d at 1053. 13 Here, the question is whether Plaintiff was in imminent danger on March 18, 2020, the 14 date he filed his complaint. The Court finds that Plaintiff’s allegations fail to show that he was. 15 As mentioned above, Plaintiff alleged in his complaint that on April 16, 2019 and July 9, 2019 16 (approximately eleven months and eight months, respectively, prior to the filing date), Defendant 17 violated Plaintiff’s equal protection right based on these two incidents of racial discrimination. 18 See Dkt. 1. The Court notes that Plaintiff’s complaint does not allege that he faced an imminent 19 danger of serious physical injury at the time he filed his complaint. See generally Dkt. 1. 20 III. CONCLUSION 21 For the reasons outlined above, the Court orders as follows: 22 1. The Court LIFTS the stay in the instant action, and the Clerk shall REOPEN the 23 file. 24 2. This Court GRANTS Defendants’ request for judicial notice of the court 25 documents provided in support of the motion to dismiss on the grounds that Plaintiff is barred 26 from proceeding IFP under 28 U.S.C. § 1915(g). Dkt. 13-1. 27 3. In light of the three dismissals outlined above, and because Plaintiff does not 1 CAUSE in writing no later than twenty-eight (28) days from the date of this Order why his IFP 2 status should not be revoked and this action should not be dismissed pursuant to 28 U.S.C. 3 § 1915(g). If Plaintiff is so inclined, he may avoid dismissal by paying the $350.00 filing fee. In 4 any event, the Court will continue to review under section 1915(g) all future actions filed by 5 Plaintiff while he is incarcerated in which he seeks IFP status. 6 Failure to file a timely response or failure to pay the full filing fee will result in the 7 || dismissal of this action without further notice to Plaintiff. 8 IT IS SO ORDERED. 9 Dated: March 1, 2021 10 J E YVONNE GONZALEZ ROGERS 11 United States District Judge 12

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