(PC) Brookins v. Renteria

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 BARRY L. BROOKINS, Case No. 1:21-cv-01809-HBK (PC)

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)

14 RENTERIA, Correctional Officer,

FOURTEEN-DAY OBJECTION PERIOD

15 Defendant.

(Doc. Nos. 2, 7)

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ORDER TO ASSIGN TO DISTRICT JUDGE

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20 Plaintiff Barry L. Brookins, a state prisoner, initiated this action by filing a pro se civil

21 rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff filed two separate motions

22 seeking leave to proceed in forma pauperis (“IFP motions”). (Doc. Nos. 2, 7).

23 For the reasons discussed below, the undersigned recommends the district court deny

24 Plaintiff’s IFP motions 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

26 exception. Plaintiff must pay the full filing fee if he wishes to proceed with a civil action.

27 BACKGROUND AND FACTS

28 Plaintiff initiated this action by delivering a civil rights complaint to correctional officials

1 for mailing on December 23, 2021.1 (Doc. No. 1). The complaint names Correctional Officer

2 Renteria as the sole defendant. (Id. at 4). The complaint generally alleges claims for violations

3 of the Eighth, Fourth and Fourteenth Amendments and “sadistic and malicious” conduct and/or

4 conduct constituting “sexual harassment.” (Id.). The gravamen of the complaint is that Officer

5 Renteria and other unnamed officers acted in an unprofessional manner, used profanity and

6 intimidation tactics and threats when conducting an unclothed body search on Plaintiff on

7 September 23, 2020. (Id. at 4-6). As relief, Plaintiff seeks compensatory damages for “mental

8 scarring, anguish, emotional distress, [and] psychological trauma caused by this ordeal.” (Id. at

9 6). The complaint attaches the inmate appeals Plaintiff filed with prison officials concerning his

10 claim. (Id. at 7-23).

11 APPLICABLE THREE STRIKE LAW

12 The “Three Strikes Rule” states:

13 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

14 incarcerated or detained in any facility, brought an action or appeal

in the United States that was dismissed on grounds that it was

15 frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious

16 physical injury.

17 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was

18 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct.

19 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought

20 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment

21 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious,

22 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir.

23 2007).

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25 1 Notably, a prison date stamp on the first page reflects the scanned and emailed date as December 22,

2021, but the proof of service form reflects the date referenced above, December 23, 2021. (Compare

26 Doc. No. 1 at 1, with id. at 23). The Clerk of Court docketed the complaint on December 27, 2021. (See

docket). The court applies the mailbox rule to complaints filed by prisoners. Douglas v. Noelle, 567 F.3d

27 1103, 1107-09 (9th Cir. 2009) (applying the mailbox rule adopted by the Supreme Court for habeas

actions in Houston v. Lack, 487 U.S. 266 (1988) to § 1983 suit filed by pro se prisoners).

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1 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning

2 the dismissal must have been before plaintiff initiated the current case. See § 1915(g). The

3 reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 738 F.3d 1106, 1109

4 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the action was for frivolity,

5 maliciousness, or for failure to state a claim, or an appeal was dismissed for the same reasons.

6 Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty.

7 Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes);

8 Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike

9 during the pendency of the appeal). It is immaterial whether the dismissal for failure to state a

10 claim to count was with or without prejudice, as both count as a strike under § 1915(g). Lomax,

11 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint requiring

12 the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler

13 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim

14 relying on qualified immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84

15 (9th Cir. Aug. 9, 2016). Dismissals of complaint as time barred under the applicable statute of

16 limitations counts as a strike. Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015). Further, where a

17 court dismisses a complaint for failure to state claim with leave to amend, the court’s subsequent

18 dismissal for failure to comply with a court order by filing an amended complaint constitutes a

19 strike for purposes of § 1915(g). Harris v. Magnum, 863 F.3d 1133, 1143 (9th Cir. 2017).

20 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without

21 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner

22 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint.

23 Andrews v. Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger

24 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial

25 allegations” liberally to determine whether the allegations of physical injury are plausible.

26 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent

27 danger may be rejected as overly speculative, fanciful, or “conclusory or ridiculous.” Andrews,

28 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly conclusory assertions” of imminent

1 danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). Instead,

2 the “imminent danger” exception exists “for genuine emergencies,” where “time is pressing” and

3 “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus,

4 conditions that posed imminent danger to a plaintiff at some earlier time are immaterial, as are

5 any subsequent conditions. Cervantes, 493 F.3d at 1053. Blackman v. Mjening, 1:16-cv-01421-

6 LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016).

7 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the

8 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the

9 ‘imminent danger’ exception of § 1915(g).” Stine v. Fed. Bureau of Prisons, 2015 WL 5255377,

10 at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298–99 (2d Cir.

11 2009)). To determine whether such a nexus exists, the court considers “(1) whether the

12 imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable

13 to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome

14 would redress that injury. The three-strikes litigant must meet both requirements in order to

15 proceed [in forma pauperis].” Id.

16 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. §

17 1915(g), the proper procedure is to dismiss the case without prejudice to re-filing the action upon

18 pre-payment of fees at the time the action is refiled. Hardney v. Hampton, No. 2:20-cv-01587-

19 WBS-DMC-P, 2021 WL 4896034, at *4 (E.D. Cal. Oct. 20, 2021), report and recommendation

20 adopted, No. 2:20-cv-01587-WBS-DMC-P, 2021 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing

21 Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Campbell v. Vance, No. CIV S-05-

22 1163 RRB, 2005 WL 3288400, at *1 (E.D. Cal. Nov. 30, 2005). A plaintiff may resume his

23 claims if he prepays the civil and administrative filing fees required by 28 U.S.C. § 1914(a).

24 The preceding law must be taken in the context of congressional intent when enacting the

25 Prison Litigation Reform Act. As the United States Supreme Court recently noted in Lomax,

26 “[t]he point of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner

27 suits.” Lomax, 140 S.Ct. at 1726. By curbing the “flood of nonmeritorious claims,” § 1915(g)

28 provides the court with a mechanism to recognize a “three striker,” deny IFP on that basis, require

1 payment of the full filing fee, which absent being paid, the court may dismiss the case, thereby

2 permitting time for consideration of suits more likely to succeed. Lomax, 140 S.Ct. at 1726; see

3 also Bruce v. Samuels, 577 U.S. 82, 85 (2016) (recognizing PLRA was “designed to filter out the

4 bad claims filed by prisoners and facilitate consideration of the good.”) (citations and internal

5 quotations and alterations omitted).

6 ANALYSIS

7 A. Plaintiff Has Three or More Qualifying Strikes

8 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d

9 118, 119 (9th Cir. 1980). A review of the Pacer Database reveals Brookins has filed at least 15

10 civil actions in a district court or appellate court of the United States and has had at least three

11 cases dismissed that qualify as a strike under Ninth Circuit caselaw prior to filing this lawsuit.

12 Although not exhaustive, for purposes of this report and recommendation, each of the following

13 cases are properly deemed qualifying § 1915(g) strikes and each were entered before the instant

14 action was filed:

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16 Date of Order Case Style Disposition

Brookins v. Dwivedi, Order adopting report and

17 September 7, 2021

Case No. 1:18-cv-00645- recommendation granting

18 DAD-GSA (E.D. Cal. motion to dismiss under Fed.

September 7, 2021) R. Civ. P. 12(b)(6) finding

19 action time-barred under

applicable statute of

20 limitations.

Brookins v. Metts, et al., Order adopting report and

21 January 9, 2019

Case No. 1:17-cv-01539- recommendation after 28

22 DAD-SAB (E.D. Cal. U.S.C. § 1915A screening

January 9, 2019) and dismissing action for

23 failure to state a claim upon

which relief can be granted.

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Brookins v. Slayton, No. C- Order granting defendant’s

April 23, 1993

25 92-3688 BAC, 1993 WL motion to dismiss under Fed.

255500, at *3 (N.D. Cal. R. Civ. P. 12(b)(6) finding

26 Apr. 23, 1993) defendant entitled to qualified

immunity.

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1 Additionally, on October 15, 2001, the Central District of California dismissed an action

2 filed by Plaintiff and his brother because “it appears clear that the complaint cannot go forward

3 because prison administrative remedies have not been exhausted by either brother.” Brookins v.

4 Terhune, No. C 01-3241 SI(PR), 2001 WL 1256677, at *1 (C.D. Cal. Oct. 15, 2001). Arguably,

5 this dismissal also qualifies as a strike because exhaustion appears to be clear from the face of the

6 complaint. El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016); Albino v. Baca, 747

7 F.3d 1162, 1169 (9th Cir. 2014). Nonetheless, even assuming that this additional dismissal does

8 not qualify as a strike, as evidenced by the above, Plaintiff has three other qualifying strikes for

9 purposes of § 1915(g).

10 B. The Imminent Danger Exception Does Not Apply

11 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the

12 complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical

13 injury as of the date the complaint is filed. Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th

14 Cir. 2007). Liberally construing the complaint, the undersigned find it contains no plausible

15 allegations sufficient to allege Plaintiff was in imminent danger of serious physical injury at the

16 time he filed the action. Instead, the complaint seeks compensatory damages for Plaintiff’s

17 mental anguish because he was humiliated for having to submit to an unclothed body search

18 pursuant to prison rules. There are no allegations that Plaintiff sustained any physical injury, yet

19 alone any factual allegations from which the court can find any basis that he is currently under

20 threat of imminent physical danger to invoke the § 1915(g) exception. Based on the foregoing,

21 the undersigned recommends Plaintiff’s IFP motions be denied under § 1915(g) due to his three-

22 strike status and his failure to meet the imminent danger exception.

23 CONCLUSION AND RECOMMENDATIONS

24 Based on the foregoing, the Court RECOMMENDS that:

25 1. Plaintiff’s motions to proceed in forma pauperis, (Doc. Nos. 2, 7), be DENIED.

26 2. This action be DISMISSED without prejudice to refiling upon prepayment of

27 the filing fees.

28 It is further ORDERED that the Clerk of Court is DIRECTED to randomly assign a

1 | United States District Judge for consideration of these Findings and Recommendations.

2 NOTICE TO PARTIES

3 These findings and recommendations will be submitted to the United States district judge

4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

5 | days after being served with these findings and recommendations, a party may file written

6 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

7 | Findings and Recommendations.” Parties are advised that failure to file objections within the

8 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

9 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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"| Dated: _ January 19, 2022 Wile. Th fares Zack

12 HELENA M. BARCH-KUCHTA

3 UNITED STATES MAGISTRATE JUDGE

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