Turner v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID B. TURNER, Jr., Case No.: 22-CV-1222-RSH (JLB) Booking No. 22726041, 12 ORDER (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS AS vs. BARRED BY 28 U.S.C. § 1915(g) AND 14 (2) DISMISSING CIVIL ACTION 15 WITHOUT PREJUDICE FOR COUNTY OF SAN DIEGO, et al., FAILURE TO PAY FILING FEE 16 Defendants. REQUIRED BY 28 U.S.C. § 1914(a) 17 18 Plaintiff David B. Turner, Jr. is a prisoner detained at the San Diego County Jail in 19 San Diego, California. On August 18, 2022, Plaintiff filed a civil rights complaint pursuant 20 to 42 U.S.C. § 1983, but neither paid the civil filing fee nor submitted a motion to proceed 21 in forma pauperis (“IFP”). ECF No. 1. Plaintiff alleges he was hit by a car and broke his 22 leg before he was housed in the San Diego County Jail, and while recovering from the 23 broken leg, he was required to sit in a wheelchair in ankle shackles handcuffed to a wall. 24 Id. at 3. Plaintiff claims he was refused sufficient pain medication and forced to live in 25 overcrowded conditions, which caused him to contract COVID-19. Id. at 3–4. He seeks 26 $34 million in damages. Id. at 7. 27 On August 26, 2022, the Court dismissed this action without prejudice for failure to 28 1 satisfy the filing fee requirement. ECF No. 2. Plaintiff now moves to proceed IFP. ECF 2 No. 3. For the reasons discussed below, the Court denies Plaintiff’s motion (ECF No. 3) 3 and dismisses the Complaint (ECF No. 1) without prejudice. 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 7 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 8 of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 9 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The action may proceed despite a plaintiff’s 10 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 11 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 12 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 13 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 14 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP 15 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 16 appeal in a court of the United States that was dismissed on the 17 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 18 imminent danger of serious physical injury. 19 20 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 21 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 22 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 23 pursuing any other IFP action in federal court unless he can show he is facing “imminent 24 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 25 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that 26 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”) 27 Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 28 dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” 1 King, 398 F.3d at 1116 n.1. A strike may also be denial of the prisoner’s IFP application. 2 See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (noting that a complaint is 3 “dismissed” under § 1915(g), “even if the district court styles such dismissal as denial of 4 the prisoner’s application to file the action without prepayment of the full filing fee”). In 5 determining whether a dismissal counts as a strike, “the style of the dismissal or the 6 procedural posture is immaterial.” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 7 2016). “Instead, the central question is whether the dismissal ‘rang the PLRA bells of 8 frivolous, malicious, or failure to state a claim.’” Id. (quoting Blakely v. Wards, 738 F.3d 9 607, 615 (4th Cir. 2013)). 10 While defendants typically carry the initial burden to produce evidence 11 demonstrating a prisoner is not entitled to proceed IFP, “[i]n some instances, the district 12 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 13 criteria under § 1915(g) and therefore counts as a strike.” King, 398 F.3d at 1120. That is 14 the case here. 15 A court “may take notice of proceedings in other courts, both within and without the 16 federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias 17 v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 18 F.3d 801, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court finds 19 that Plaintiff has been previously identified under San Diego County Sheriff’s Department 20 Booking No. 13719099 and Booking No. 15780644, and CDCR Inmate #G-30643. While 21 incarcerated, Plaintiff has had at least four prior civil actions dismissed on the grounds that 22 they were frivolous, malicious, or failed to state a claim upon which relief may be granted.1 23 These cases are: 24 (1) Turner v. Metropolitan Transit System, No. 3:09-cv-00770-AJB-KSC 25 26 1 In fact, a review of the Court’s own dockets on PACER show that Plaintiff has filed 27 more than thirty cases similar to this one over the course of the last ten years, most of them alleging excessive force and the denial of medical care, and seeking monetary relief from 28 1 (S.D. Cal. Nov. 20, 2009) (denying amended motion to proceed IFP and dismissing amended complaint for failing to state a claim pursuant to 28 2 U.S.C. § 1915(e)(2)(B) & § 1915A(b) at ECF No. 6); 3 (2) Turner v. Corporal Saunder (7294), No. 3:13-cv-01368-MMA-DHB 4 (S.D. Cal. June 18, 2013) (dismissing action as frivolous pursuant to 28 U.S.C. 5 § 1915A(b) and denying motion to proceed IFP as moot at ECF No. 3);

6 (3) Turner v. County of San Diego, No. 3:13-cv-02288-LAB-RBB (S.D. Cal. 7 July 11, 2014) (dismissing sua sponte First Amended Complaint for failing to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and 8 § 1915A(b) at ECF No. 7), No. 14-56249 (9th Cir. Nov. 11, 2014) (denying 9 appellant’s motion to proceed IFP “because we find that there is no non- frivolous issue presented in this appeal”); and 10 11 (4) Turner v. San Diego County, No. 3:13-cv-02729-JLS-PCL (S.D. Cal. Nov. 19, 2014) (granting IFP and dismissing sua sponte First Amended 12 Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 13 and § 1915A(b)(1) at ECF No. 13) (dismissing case in its entirety for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) 14 and for failing to prosecute pursuant to Fed. R. Civ. P. 41(b) at ECF No. 14)2, 15 No. 15-55544 (9th Cir. July 30, 2015) (denying appellant’s motion to proceed IFP “because we find that the appeal is frivolous”)3. 16 Because Plaintiff has accumulated at least four “strikes” as defined by § 1915(g) 17 while incarcerated, he is not entitled to the privilege of proceeding IFP in this action, unless 18 he has made a “plausible allegation” that he faced imminent danger of serious physical 19 injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 20 F.3d at 1180 (stating that 28 U.S.C. § 1915(g) “only precludes prisoners with a history of 21 22 23 2 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district 24 court dismisses a complaint on the ground that it fails to state a claim, and (2) the court 25 grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 26 3 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate 27 court’s denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted a “strike” under § 1915(g) “even though [it] did not dismiss the appeal until 28 1 abusing the legal system from continuing to abuse it while enjoying IFP status”). 2 Plaintiff alleges in this case that while recovering from the broken leg he was 3 required to sit in a wheelchair in ankle shackles handcuffed to a wall. ECF No. 1 at 3. 4 Plaintiff claims he was refused sufficient pain medication and forced to live in overcrowded 5 conditions, causing him to contract COVID-19. Id. at 3–4. These allegations fail to 6 plausibly suggest he was in imminent danger of serious physical injury at the time he filed 7 the Complaint. See Dustin v. Kern Valley State Prison Personnel, No.19cv0989-LJO-SAB 8 (PC), 2019 WL 6463991, at *1 (E.D. Cal. Dec. 2, 2019) (holding that allegations of 9 lingering pain caused by past injury does “not establish that [plaintiff] was in imminent 10 danger of serious physical injury at the time he filed his complaint.”) (collecting cases); 11 Bontemps v. Baker, No. 16cv2814-MCE-CMK, 2018 WL 4095922, at *2 (E.D. Cal. Aug. 12 28, 2018) (“The court finds that the injuries alleged to have been sustained as a result of 13 incorrect placement of handcuffs is not severe enough to rise to the level of imminent 14 danger of serious physical injury.”); Stewart v. Lystad, No. 16cv1439-BHS-JRC, 2016 WL 15 6816278, at *2–3 (W.D. Wash. Oct. 14, 2016) (finding prisoner’s claims of “intractable” 16 foot pain and an alleged inability to “work out, fall asleep, work, stand for long periods or 17 walk long distances” insufficient to satisfy § 1915(g)’s “imminent danger” exception), 18 report and recommendation adopted, 2016 WL 6805339 (W.D. Wash. Nov. 17, 2016); 19 Shove v. McDonald, No. 14cv2903-JD, 2015 WL 5693730, at *3 (N.D. Cal. Sept. 29, 2015) 20 (holding that pain and injury caused by being placed in handcuffs failed to demonstrate 21 “possible serious physical injury”). 22 Therefore, the Court finds Plaintiff’s Complaint contains no “plausible allegations” 23 to suggest he “faced ‘imminent danger of serious physical injury’ at the time of filing.” See 24 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 25 II. Conclusion and Orders 26 For the reasons above, the Court DENIES Plaintiff’s Motion to Proceed IFP (ECF 27 No. 3) as barred by 28 U.S.C. § 1915(g). Further, the Court DISMISSES Plaintiff’s 28 Complaint for failure to satisfy the filing fee requirement. Unless Plaintiff pays the $402 | civil filing fee within forty-five (45) days of the date this Order is filed, the Court will enter 2 ||a final judgment of dismissal. 3 IT IS SO ORDERED. 4 5 || Dated: September 27, 2022 jf } z C L, . 6 on. Robert S. Huie 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28