Vaca v. Washington

Opinion

1 MH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Marcos Vaca, No. CV 22-00808-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Eartha K. Washington, et al., 13 14 Defendants.

15 16 On May 11, 2022, Plaintiff Marcos Vaca, who is confined in a Maricopa County 17 Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and a Motion for 18 Appointment of Counsel. In a May 24, 2022 Order, the Court gave Plaintiff 30 days to 19 either pay the filing and administrative fees or file an in forma pauperis application. On 20 June 8, 2022, Plaintiff filed an Application to Proceed In Forma Pauperis (Doc. 5). In a 21 June 28, 2022 Order, the Court gave Plaintiff an opportunity to show cause why the 22 dismissals of his prior lawsuits should not prevent him from proceeding in forma pauperis 23 in this action pursuant to the “three strikes” provision set forth in 28 U.S.C. § 1915(g). 24 Plaintiff was given 30 days to file a written response. The Court did not receive a response 25 from Plaintiff within the allotted time, and on August 17, 2022, the Clerk of Court entered 26 Judgment, dismissing this action without prejudice. On August 29, 2022, Plaintiff filed a 27 Motion to Reinstate (Doc. 9). 28 . . . . 1 In his Motion to Reinstate, Plaintiff states that he sent a written response to the Court 2 on July 10, 2022, but personnel at the Lower Buckeye Jail are tampering with his mail. 3 Plaintiff attaches to his Motion copies of several Inmate Legal Requests submitted between 4 July 10 and 24, 2022, in which he inquires about the status of a Motion to Show Cause that 5 he mailed to the Court. Plaintiff also attaches a copy of his Motion to Show Cause, which 6 is dated July 10, 2022. Based on this documentation, the Court will grant the Motion to 7 Reinstate and direct the Clerk of Court to reopen this action. 8 I. Dismissal Pursuant to 28 U.S.C. § 1915(g) 9 A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 10 (“IFP”) if: 11 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 the United States that 12 was dismissed on the grounds that it is frivolous, malicious, or fails to state 13 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 14 15 28 U.S.C. § 1915(g). 16 “[Section] 1915(g) should be used to deny a prisoner’s IFP status only when, after 17 careful evaluation of the order dismissing an action, and other relevant information, the 18 district court determines that the action was dismissed because it was frivolous, malicious 19 or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “In 20 some instances, the district court docket records may be sufficient to show that a prior 21 dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a 22 strike.” Id. at 1120. 23 Plaintiff does not dispute that the prior actions identified in the Court’s June 28, 24 2022 Order to Show Cause1 were dismissed for failure to state a claim, and the Court 25 concludes that these actions qualify as “strikes” under § 1915(g).

26 1 Vaca v. La Paz Cty. Sheriff’s Dep’t, CV 19-01369-PHX-JAT (CDB) (Sept. 24, 27 2019 Order dismissing first amended complaint for failure to state a claim, with leave to amend, and November 15, 2019 Judgment of dismissal for failure to file second amended 28 complaint); Vaca v. La Paz Cty. Sheriff’s Dep’t, CV 18-01886-PHX-JAT (CDB) (July 25, 2019 Order and Judgment dismissing first amended complaint and action for failure to state 1 II. Imminent Danger 2 A plaintiff who has three or more strikes may not bring a civil action without 3 complete prepayment of the $350.00 filing fee and $52.00 administrative fee unless he is 4 in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). To meet the 5 “imminent danger” requirement, the “threat or prison condition [must be] real and 6 proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting Lewis v. 7 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations must be “specific or 8 credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). “[T]he exception 9 applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent 10 danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 11 1047, 1055 (9th Cir. 2007) (quoting § 1915(g)). Moreover, although a court considering a 12 motion to proceed in forma pauperis, “should not attempt to evaluate the seriousness of a 13 plaintiff’s claims[, . . . ] it has never been the rule that courts must blindly accept a 14 prisoner’s allegations of imminent danger.” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 15 2010). 16 “[T]he availability of the [imminent danger] exception turns on the conditions a 17 prisoner faced at the time the complaint was filed, not some earlier or later time.” Andrews, 18 493 F.3d at 1053. Claims concerning an “imminent danger of serious physical injury” 19 cannot be triggered solely by complaints of past abuse. See Ashley v. Dilworth, 147 F.3d 20 715, 717 (8th Cir. 1998); Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999). 21 Plaintiff alleges in his Complaint that he was “coerce[d]” into pleading guilty, even 22 though he advised the trial court that he had been in danger of being killed and “was only 23 trying to save [his] life” at the time he committed the crime for which he was convicted. 24 These allegations do not show that Plaintiff is in imminent danger of serious physical 25 injury. 26 . . . . 27 . . . .

28 a claim); and Vaca v. Trinity, CV 18-02242-PHX-JAT (CDB) (May 30, 2019 Order and Judgment dismissing second amended complaint and action for failure to state a claim). 1| IQ. Conclusion 2 The Court will deny Plaintiff's Application to Proceed In Forma Pauperis and will dismiss Plaintiff's Complaint and this action, without prejudice, pursuant to § 1915(g). If 4) Plaintiff wants to reassert these claims in the future, he must prepay the entire $402.00 5 | filing and administrative fees when he files his action. 6| ORDERED: 7 (1) Plaintiff's Motion to Reinstate (Doc. 9) is granted. The Clerk of Court must 8 | vacate the Judgment (Doc. 8) and reopen this action. 9 (2) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 5) is denied. 10 (3) Plaintiffs Complaint (Doc. 1) and this action are dismissed without 11 | prejudice, pursuant to 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert these claims in 12 | the future, he must prepay the entire $402.00 filing and administrative fees when he files 13 | his action. 14 (4) The Clerk of Court must enter judgment accordingly and close this case. 15 Dated this 26th day of September, 2022. 16 17 a 3 18 19 _ James A. Teil Org Senior United States District Judge 20 21 22 23 24 25 26 27 28