addressing imminent danger exception for 6 the first time in the Ninth Circuit
How later courts described this case
- addressing imminent danger exception for 6 the first time in the Ninth Circuit
- dismissal that is on appeal counts as a strike 2 during the pendency of the appeal
- reviewing dismissals that count as strikes
- the PLRA was designated to filter out the bad claims filed by prisoners and facilitate 18 consideration of the good, resulting in the payment of all future filing fees payable up front for 19 those prisoner-plaintiffs deemed three-strikers
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DARNELL MAURICE DUKES, Case No. 1:21-cv-01570-HBK
12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION FOR LEAVE
13 v. TO PROCEED IN FORMA PAUPERIS
UNDER 28 U.S.C. § 1915(g)1
14 TAMMY SOTO, JOHN PEARCE,
FOURTEEN-DAY OBJECTION PERIOD
15 Defendants.
(Doc. No. 2)
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17 ORDER TO ASSIGN TO DISTIRCT JUDGE
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19 Plaintiff Darnell Maurice Dukes, a prisoner incarcerated at California State Prison-
20 Corcoran, initiated this action by filing a pro se civil rights complaint under 42 U.S.C. § 1983 on
21 October 21, 2021. (Doc. No. 1). Plaintiff seeks leave to proceed in forma pauperis (“IFP
22 motion”). (Doc. No. 2).
23 For the reasons discussed below, the undersigned recommends the district court deny
24 Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at least three
25 dismissals that constitute strikes and he has not established he meets the imminent danger
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27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of
California Local Rule 302 (E.D. Cal. 2019).
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1 exception. Plaintiff must pay the full filing fee if he wishes to proceed with a civil action.
2 I. BACKGROUND AND FACTS
3 The Complaint names the following defendants: Tammy Soto, a registered nurse, and
4 John Pearce, a physician. (Doc. No. 1 at 1). At this stage of the proceedings, the Court accepts
5 the following factual allegations set forth in the Complaint as true. On March 18, 2020, Plaintiff
6 had shoulder surgery at Alvarado Hospital in San Diego, California. (Id. at 4). The surgeon
7 prescribed Plaintiff “proper medication for this pain and suffering,” but Defendant Soto
8 prescribed him Tylenol-Codeine contrary to the surgeon’s prescription. (Id.). Plaintiff states
9 because he takes Gabapentin, he should have never been prescribed Tylenol with codeine for his
10 pain. (Id.). As a result, Plaintiff experienced “severe diarrhea, inability to hold down food and
11 liquid[s], pain and loss of weight,” which symptoms he states remain ongoing. (Id.).
12 Plaintiff attaches medical documents, including copies of his health care grievances and
13 the institution’s responses to his Complaint. (Id.at 8-25). The medical documents confirm
14 Plaintiff had shoulder surgery on March 18, 2020. (Id. at 8). Plaintiff tolerated the procedure and
15 was discharged that same day to prison. (Id.). The nursing staff reviewed the discharge treatment
16 recommendations and did not find non-formulary use of oxycodone appropriate at that time and
17 instead found short-term course of acetaminophen with codeine appropriate post-operative pain
18 management. (Id.). Plaintiff did not agree that the nurse could change the surgeon’s
19 recommendations for post-operative pain medication. (Id. at 10-12).
20 Plaintiff received post-operative follow-up care on March 19, 2020, at which time
21 Plaintiff was encouraged to use pain mediation only as needed. (Id. at 8, 15). Four days later,
22 Plaintiff reported to medical with diarrhea symptoms and was ordered to discontinue
23 acetaminophen with codeine. (Id.). Plaintiff submitted a medical grievance noting diarrhea,
24 severe pain, and inability to hold down food resulting in dehydration and loss of sleep on March
25 22, 2020. (Id. at 18). However, on March 24, 2020, Plaintiff reported to the medical department
26 and denied unexplained weight loss or gain. (Id. at 15). Regular Tylenol without codeine was
27 prescribed for pain. (Id.).
28 Plaintiff continued to receive medical care and received a plan of care that included
1 physical therapy and pain medication. (Id.at 8, 16) (noting Plaintiff had physical therapy on April
2 28, 2020, April 30, 2020, May 5, 2020, May 7, 2020, May 12, 2020, May 14, 2020, and May 19,
3 2020). Medical notes reflect Plaintiff reported to the medical department and he was encouraged
4 to continue a self-exercise program and gentle stretches, and to report to medical for continued
5 monitoring. Improvement to Plaintiff’s left shoulder was noted and Plaintiff did not have any
6 medical complaints. (Id. at 8). Plaintiff is enrolled in a Chronic Care Program. (Id.). As relief,
7 Plaintiff requests monetary damages and other relief this Court deems just and equitable. (Id. at
8 5).
9 II. APPLICABLE THREE STRIKE LAW
10 The “Three Strikes Rule” states:
11 In no event shall a prisoner bring a civil action or proceeding under
this section if the prisoner has, on 3 or more prior occasions, while
12 incarcerated or detained in any facility, brought an action or appeal
in the United States that was dismissed on grounds that it was
13 frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
14 physical injury.
15 28 U.S.C. § 1915(g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was
16 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct.
17 1721, 1723 (2020) (citations omitted). Under § 1915(g), prisoners may be barred from bringing a
18 civil action and paying the fee on a payment plan once they have had, on prior occasions, three or
19 more cases dismissed as frivolous, malicious, or for failure to state a claim. Id.; see also Andrews
20 v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007).
21 To determine whether a dismissal counts as a strike, a reviewing court looks to the
22 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d
23 1106, 1109 (9th Cir. 2013). For a dismissal to count as a strike, the dismissal had to be on a
24 “prior occasion,” meaning it occurred before plaintiff initiated the instant case. See 28 U.S.C. §
25 1915(g). A dismissal counts as a strike when the dismissal of the action was for frivolity,
26 maliciousness, or for failure to state a claim, or an appeal was dismissed for one of those reasons.
27 Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty.
28 Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes);
1 Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike
2 during the pendency of the appeal). Regardless of whether the dismissal was with or without
3 prejudice, a dismissal for failure to state a claim counts as a strike under § 1915(g). Lomax, 140
4 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint by requiring
5 payment of the full filing fee, then such a complaint is “dismissed” as a strike for purposes of §
6 1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for
7 failure to state a claim based on qualified immunity counts as a strike. Reberger v. Baker, 657 F.
8 App’x 681, 683-84 (9th Cir. Aug. 9, 2016). Further, where a court dismisses a complaint for
9 failure to state claim with leave to amend, the court’s subsequent dismissal for failure to comply
10 with a court order by failing to file an amended complaint constitutes a strike for purposes of §
11 1915(g). Harris v. Magnum, 863 F.3d 1133, 1143 (9th Cir, 2017). Further, where lack of
12 exhaustion is clear from the face of the complaint, then the dismissal counts as a strike. See El-
13 Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016).
14 Dismissals that do not count as § 1915(g) strikes include dismissals of habeas corpus
15 petitions, unless the habeas was purposefully mislabeled to avoid the three strikes provision. See
16 generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016). Denial or dismissal of
17 writs of mandamus petitions, dismissals under the Younger2 abstention doctrine, or under Heck v.
18 Humphrey3 generally do not count as a strike, but in some instances Heck dismissals may count as
19 a strike. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (9th Cir. 2016)
20 (citations omitted) (recognizing some Heck dismissals may count as strikes but noting others do
21 not; and reiterating abstention doctrine dismissals and writs of mandamus do not count as strikes).
22 Dismissal of a claim based on sovereign immunity does not count as a strike. Hoffman v. Pulido,
23 928 F.3d 1147 (9th Cir. 2019). The Ninth Circuit also does not count cases dismissed for lack of
24 jurisdiction as strikes. Moore v. Maricopa Cty. Sheriff's Off., 657 F.3d 890, 894 (9th Cir. 2011).
25 Finally, the Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason
26 enumerated in § 1915A, then that reason “saves” the dismissal from counting as a strike. Harris
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2 Younger v. Harris, 401 U.S. 37 (1971).
28 3 Heck v. Humphrey, 512 U.S. 477 (1994).
1 v. Harris, 935 F.3d 670 (9th Cir. 2019).
2 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without
3 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner
4 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v.
5 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for
6 the first time in the Ninth Circuit). The Court must construe the prisoner’s “facial allegations”
7 liberally to determine whether the allegations of physical injury are plausible. Williams v.
8 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be
9 rejected as overly speculative, fanciful, “conclusory or ridiculous.” Andrews, 493 F.3d at 1057,
10 n.11.
11 The foregoing law must be taken in the context of Congressional intent when enacting the
12 Prison Litigation Reform Act, under which § 1915(g) falls. As the Supreme Court recently
13 discussed in Lomax, the purpose of § 1915(g) was to curb the “flood of nonmeritorious claims,”
14 and to allow the court a mechanism to recognize a “three striker,” deny IFP on that basis, and
15 dismiss the case if the full filing fee is not paid, thereby permitting time for consideration of suits
16 more likely to succeed. Lomax, 140 S.Ct. at 1726; see also Bruce v. Samuels, 577 U.S. 82, 85
17 (2016) (the PLRA was designated to filter out the bad claims filed by prisoners and facilitate
18 consideration of the good, resulting in the payment of all future filing fees payable up front for
19 those prisoner-plaintiffs deemed three-strikers).
20 III. ANALYSIS
21 A. Plaintiff Has Three or More Qualifying Strikes
22 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database.
23 Further a review of the Pacer Database reveals plaintiff has filed at least 40 other civil actions or
24 appeals in a court of the United States. And previous to this lawsuit, has been denied in forma
25 pauperis status under § 1915(g) due to his three-strike status. Although not exhaustive, for
26 purposes of this report and recommendation, each of the following cases are properly deemed
27 qualifying § 1915(g) strikes and each were entered before Plaintiff commenced the instant
28 action:/
1 /Date of Order Case Title Disposition
2 Dukes v. California Dep’t of Dismissed for failure to
June 28, 2019
Corr., Case No. 1:18-cv- exhaust administrative
3
288-LJO-BAM (E.D. Cal. remedies apparent on face of
4 2019) the complaint.
Dukes v. Cal. Corr. Dismissed for failure to state
December 1, 2016
5 Healthcare Systems, Case a claim.
No., 2:16-cv-2307-KHN
6 (E.D. Cal. 2016)
Dukes v. L.D. Zamora, et. Finding complaint failed to
7 April 23, 2012
al., Case No. 1:12-cv- state a claim and directed to
8 01014-LJO-SKO (E.D. Cal. file an amended complaint.
2012 Dismissed for not filing an
9 amended complaint.
Dukes v. Cash, et. al., Case Denied motion to proceed in
10 November 29, 2011
No. 2:11-cv-9460-UA- forma pauperis because
11 MAN (C.D. Cal. 2011) Plaintiff was deemed a three-
striker and ultimately
12 dismissed after not paying the
filing fee.
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14 As far back as 2011, Plaintiff’s three-strike status was noted. See e.g. Dukes v. Cash,
15 Case No. 2:11-cv-9460-UA-MAN (C.D. Cal. 2011). As evidenced by the above, Plaintiff clearly
16 has three or more qualifying strikes for purposes of § 1915(g).
17 B. The Imminent Danger Exception Does Not Apply
18 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the
19 Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical
20 injury as of the date the Complaint was filed. Andrews, 493 F.3d 1047, 1052-53 (9th Cir. 2007)
21 (emphasis added). Here, liberally construing the Complaint, the undersigned find it contains no
22 plausible allegations sufficient to allege Plaintiff was in imminent danger of serious physical
23 injury when he filed the action. The surgery necessitating pain medication took place over 18
24 months ago. Plaintiff’s allegations of imminent danger of serious physical injury are related to
25 the onset of symptoms he describes he experienced after taking Tylenol with codeine for pain
26 following that surgery, specifically including diarrhea, inability to keep down food and liquids,
27 abdominal pain, and weight loss. (Doc. No. 1 at 4). These allegations are directly contradicted
28 by the documents Plaintiff incorporates within his Complaint. The documents Plaintiff attaches
1 belie his allegations that his serious medical symptoms are continuing in nature. The documents
2 confirm that, while Tylenol with codeine caused Plaintiff to experience diarrhea initially, medical
3 staff advised Plaintiff to discontinue it. (Id. at 8, 15). The documents show Plaintiff has been
4 regularly receiving medical care following his shoulder surgery, including post-operative check-
5 ups, care plans, and physical therapy. (Id. at 8-17). Further, Plaintiff on March 24, 2020,
6 Plaintiff denied unexplained weight loss. (Id. at 15). Based on this record, the Court may, and
7 does here, disregard allegations contradicted by facts established in exhibits to the Complaint.
8 See Sprwell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2011) (a plaintiff may plead
9 himself out of a claim by including . . . details contrary to his claims); see also Cooper v. Yates,
10 No. 1:09-cv-85-AWI-MJS P, 2010 WL 4924748, *3 (E.D. Cal. Nov. 29, 2010) (courts may
11 disregard factual allegations contradicted by facts established by reference to exhibits attached to
12 the complaint). Disregarding Plaintiff’s contradicted allegations of continuing injury, his
13 remaining allegations are insufficient to invoke the § 1915(g) exception because they do not
14 plausibly show imminent danger. Andrews, 493 F.3d at 1057, n.11. Based on the foregoing, the
15 undersigned recommends Plaintiff’s IFP motion be denied under § 1915(g) due to Plaintiff’s
16 three-striker status and the failure to meet the imminent danger exception.
17 Accordingly, it is ORDERED:
18 The Clerk shall randomly assign this case to a district court judge.
19 It is further RECOMMENDED:
20 Plaintiff’s IFP motion be denied and, if Plaintiff fails to pay the $402.00 filing fee within
21 a specified time set by the District Court, the case be automatically dismissed.
22 NOTICE TO PARTIES
23 These findings and recommendations will be submitted to the United States district judge
24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen
25 (14) days after being served with these findings and recommendations, a party may file written
26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
27 Findings and Recommendations.” Parties are advised that failure to file objections within the
28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
1 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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3 Dated: _ December 9, 2021 ooo. Th. Bareh Hack
4 HELENA M. BARCH-KUCHTA
; UNITED STATES MAGISTRATE JUDGE
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