Garrett v. Diaz

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

9

10 CRAIG K. GARRETT, Case No. 3:21cv00265-WQH-MDD

CDCR #K-95956,

11

ORDER:

Plaintiff,

12

vs. (1) DENYING MOTION TO

13

PROCEED IN FORMA PAUPERIS

14 AS BARRED BY 28 U.S.C. § 1915(g)

RALPH DIAZ, Secretary of Corrections

[ECF No. 3]

15 for CDCR; DANIEL PARAMO, Warden,

PATRICK COVELLO, Chief Deputy

16 AND

Warden, SIGALA, Correctional Guard;

17 DURAN, Correctional Guard; Sgt.

(2) DISMISSING CIVIL ACTION

SALAS, Correctional Guard; LARIOS,

18 FOR FAILURE TO PAY FILING

Correctional Guard; BUENROSTRO,

FEE REQUIRED BY

19 Correctional Guard; OROZCO,

28 U.S.C. § 1914(a) AND AS

Correctional Guard,

20 FRIVOLOUS PURSUANT TO

Defendants. 28 U.S.C. § 1915A(b)(1)

21

22

23 Plaintiff Craig K. Garrett, now incarcerated at California State Prison, Los Angeles

24 County (“LAC”), California, and proceeding pro se, has filed this civil rights action

25 pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Garrett did not prepay the civil

26 filing fee required to commence a civil action at the time he filed his Complaint, see ECF

27 No. 2, but he has since filed a Motion for Leave to Proceed In Forma Pauperis (“IFP”)

28 pursuant to 28 U.S.C. § 1915(a). See ECF No. 3.

1 I. Motion to Proceed IFP

2 A. Standard of Review

3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Garrett, however, “face

5 an additional hurdle.” Id.

6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in

7 monthly installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation

8 Reform Act (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP in

9 cases where the prisoner:

10 . . . 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 was

11

dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

12 upon which relief can be granted, unless the prisoner is under imminent

danger of serious physical injury.

13

14 28 U.S.C. § 1915(g); Coleman v. Tollefson, 575 U.S. 532, 535‒36 (2015). “This

15 subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398

16 F.3d 1113, 1116 n.1 (9th Cir. 2005); Coleman, 575 U.S. at 534. “Pursuant to § 1915(g), a

17 prisoner with three strikes or more cannot proceed IFP.” Andrews, 398 F.3d at 1116 n.1;

18 see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

19 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

20 suits may entirely be barred from IFP status under the three strikes rule”). The objective

21 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation

22 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); see also

23 Coleman, 575 U.S. at 535 (citing Jones v. Bock, 549 U.S. 199, 204 (2007)).

24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

25 which were dismissed on the ground that they were frivolous, malicious, or failed to state

26 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

27 district court styles such dismissal as a denial of the prisoner’s application to file the

28 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

1 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a

2 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the

3 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or

4 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

5 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “A strike-call under

6 Section § 1915(g) [] hinges exclusively on the basis for the dismissal.” Lomax v. Ortiz-

7 Marquez, 140 S. Ct. 1721, 1724‒25 (2020).

8 Once a prisoner has accumulated three strikes, Section 1915(g) prohibits his

9 pursuit of any subsequent IFP civil action or appeal in federal court unless he faces

10 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493

11 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a

12 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’

13 at the time of filing”).

14 B. Discussion

15 Garrett’s Complaint alleges that the former Secretary of the California Department

16 of Corrections and Rehabilitation (“CDCR”) and various wardens and correctional

17 officials at Richard J. Donovan Correctional Facility (“RJD”) violated his First and

18 Eighth Amendment rights while he was incarcerated there in 2018. See Compl., at 1, 4‒

19 14. Specifically, Garrett contends prison staff at RJD orchestrated a campaign of

20 harassment against him by paying another prisoner in tobacco to assault him with a

21 weapon on June 7, 2018, fabricating disciplinary offenses against him, placing him in

22 segregation, and removing him from a job assignment, all in retaliation for his having

23 previously filed a civil suit against a CDCR doctor and “numerous grievances and (Form

24 22) request[s] for interview . . . highlighting each [act of] harassment.” Id. at 6. However,

25 Garrett includes no “plausible allegations” to suggest he “faced ‘imminent danger of

26 serious physical injury’” at the time he filed his Complaint in this case on February 11,

27 2021. Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)).

28 / / /

1 Section 1915(g)’s “imminent danger” exception cannot be triggered solely by

2 complaints of past injury or generalized fears of possible future harm. See id. at 1053

3 (“The exception’s use of the present tense, combined with its concern only with the initial

4 act of ‘bring[ing]’ the lawsuit, indicates to us that the exception applies if the danger

5 existed at the time the prisoner filed the complaint.”). The “common definition of

6 ‘imminent’ . . . does not refer only to events that are already taking place, but to those

7 events ‘ready to take place’ or ‘hanging threateningly over one’s head.’” Id. at 1056.

8 Here, Garrett’s claims of an orchestrated inmate attack, retaliatory disciplinary

9 confinement, and a campaign of harassment on the part of prison officials at RJD, which

10 occurred more than three years prior to the filing of his Complaint in this case, clearly fail

11 to qualify for § 1915(g)’s imminent danger exception. See Cohea v. Davey, No. 1:19-CV-

12 01281-LJO-SAB (PC), 2019 WL 5446490, at *1 (E.D. Cal. Oct. 24, 2019) (finding

13 prisoner’s allegations of past assaults insufficient to show “imminent danger” under

14 1915(g)), reconsideration denied, No. 1:19-CV-01281-NONE-SAB (PC), 2020 WL

15 5763929 (E.D. Cal. Sept. 28, 2020); Moten v. Sosa, No. 2:17-cv-0068-JAM-ACP, 2018

16 WL 571939, at *3 (E.D. Cal. Jan. 26, 2018) (finding allegations that a guard “labeled

17 [plaintiff] a snitch-rat” and thereby “exposed [him] to emotional or physical harm from

18 other prisoners” more than a year before the complaint was filed failed to satisfy §

19 1915(g)’s exception for cases involving imminent danger), report and recommendation

20 adopted, 2018 WL 5883933 (E.D. Cal. Nov. 9, 2018); Byrd v. Dir. of Corr., No. 3:15-cv-

21 2339-GPC-KSC, 2016 WL 773229, at *2 (S.D. Cal. Feb. 29, 2016) (finding prisoner’s

22 allegations of having been denied access to court and discriminated against based on race

23 and religion insufficient to invoke § 1915(g)’s imminent danger exception); Gonzales v.

24 Castro, No. 1:09-cv-01545-AWI-MJS-PC, 2010 WL 2471030, at *2 (E.D. Cal. June 9,

25 2010) (report and recommendation finding single incident of excessive force and

26 allegations of retaliation occurring three months before filing of complaint insufficient to

27 show “real danger” or an “ongoing threat”), report and recommendation adopted, 2010

28 WL 3341862 (E.D. Cal. Aug. 25, 2010). “Although prison can undoubtedly be a

1 dangerous place, incarceration alone does not satisfy the requirement of ‘imminent

2 danger of serious physical injury’ for purposes of § 1915(g). Indeed, if it did, every

3 prisoner would be entitled to IFP status and the exception would swallow the rule.”

4 Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 144, 154 n.12

5 (3d Cir. 2017) (citation omitted).

6 Defendants typically carry the initial burden to produce evidence demonstrating a

7 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some

8 instances, the district court docket may be sufficient to show that a prior dismissal

9 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id.

10 at 1120. Thus, this Court takes judicial notice of federal court docket proceedings

11 available on PACER1 and finds that Plaintiff Craig K. Garrett, identified as CDCR

12 Inmate #K-95956, while incarcerated, has had five prior prisoner civil actions or appeals

13 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim

14 upon which relief may be granted.

15 They are:

16 1) Garrett v. Duncan, Civil Case No. 2:02-cv-01923-ABC-SGL (C.D.

Cal., West. Div., March 28, 2002) (Minute Order sua sponte dismissing

17

Complaint based on Plaintiff’s admissions of non-exhaustion pursuant to 42

18 U.S.C. § 1997e(a)) (ECF No. 5 at 1) (strike one);2

19

20

1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv-00452-

21 MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Services, 804

F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034

22 (C.D. Cal. 2015), and “‘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.’” Bias v. Moynihan, 508

23 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,

24

248 (9th Cir. 1992).

25

2 See El Shaddai, 833 F.3d at 1043‒44 (noting that in those “rare cases where a failure to exhaust is clear

26 from the face of the complaint,” dismissal may be proper under Fed. R. Civ. P. 12(b)(6) and therefore

count as a “strike” for failure to state a claim under § 1915(g)) (citing Albino v. Baca, 747 F.3d 1162, 1169

27 (9th Cir. 2014) (en banc)); see also Cruz v. Pierston, et al., Civil No. 19-cv-08039-HSG, 2020 WL 264399,

at *3 (N.D. Cal. Jan. 1, 2020) (counting dismissal for failure to exhaust “clear from the face of complaint”

28

1 2) Garrett v. Diaz, et al., Civil Case No. 3:19-cv-00510-CAB-MSB

(S.D. Cal., May 10, 2019) (Order Denying IFP and Dismissing Complaint for

2

failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

3 § 1915A(b)(1)) (ECF No. 4); (S.D. Cal. Dec. 20, 2019 Order Granting Motion

for Voluntary Dismissal based on Plaintiff’s failure to amend) (ECF No. 15)

4

(strike two);3

5

3) Garrett v. Madder, et al., Civil Case No. 2:19-cv-05206-AB-KES

6 (C.D. Cal., West. Div., June 25, 2019) (Order Denying Request to Proceed

without Prepayment of Filing Fee and finding Complaint subject to dismissal

7 as frivolous) (ECF No. 9 at 1‒3) (strike three);4

8

4) Garrett v. Madder, et al., Ninth Circuit Court of Appeals Docket

9 No. 19-55860 (Nov. 22, 2019) (Order Dismissing Appeal) (“Upon a review

of the record and response to the Court’s August 5, 2019 order, we conclude

10

this appeal is frivolous.”) (Dkt Entry No. 6 at 1) (strike four); and

11

5) Garrett v. Finander, et al., Civil Case No. 2:18-cv-10754-AB-KES

12

(C.D. Cal., West. Div. Dec. 5, 2019) (Report and Recommendation to Grant

13 Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)) (ECF

No. 43); (C.D. Cal., West Div. Feb. 5, 2020) (Order Accepting Report and

14

Recommendation) (ECF No. 46), aff’d Ninth Cir. Court of Appeals Docket

15 No. 20-55209 (Jan. 29, 2021) (Memorandum) (Dkt Entry No. 22-1 at 2)

(citing Albino, 747 F.3d at 1169 (where a failure to exhaust is clear from the

16

face of the complaint, a district court may dismiss for failing to state a claim))

17 (strike 5).

18 / / /

19

20

21 Civil No. 2:19-cv-1467-WBS-EFB P, 2020 WL 1304396, at *1 n.1 (E.D. Cal. March 19, 2020) (Findings

and Recommendations to Deny IFP pursuant to 28 U.S.C. § 1915(g) and noting one dismissal “qualifie[d]

22 as a strike under El-Shaddai […] because plaintiff’s failure to exhaust was clear from the face of the

complaint.”), report and recommendation adopted, 2020 WL 8614221 (E.D. Cal. Apr. 27, 2020).

23

3 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a

24

complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the

25 plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”).

26 4 The Central District of California’s June 25, 2019 Order also concludes its dismissal amounted to

Garrett’s third strike under 28 U.S.C. § 1915(g), and counts both the Central and Southern District of

27 California’s previous dismissals in Garrett v. Duncan, Civil Case No. 2:02-cv-01923-ABC-SGL and

Garrett v. Diaz, et al., Civil Case No. 3:19-cv-00510-CAB-MSB as strikes one and two. See Garrett v.

28

1 Accordingly, because Garrett has, while incarcerated, accumulated more than three

2 strikes pursuant to § 1915(g), and he fails to make a plausible allegation that he faced

3 imminent danger of serious physical injury at the time he filed his Complaint, he is not

4 entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at

5 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

6 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

7 prisoners with a history of abusing the legal system from continuing to abuse it while

8 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

9 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

10 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915A(b)

11 The Court is also required to review complaints filed by anyone “incarcerated or

12 detained in any facility who is accused of, sentenced for, or adjudicated delinquent for,

13 violations of criminal law or the terms or conditions of parole, probation, pretrial release,

14 or diversionary program,” “as soon as practicable after docketing” and regardless of

15 whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C.

16 § 1915A(a), (c). Pursuant to this provision of the PLRA, it must review prisoner

17 complaints like Garrett’s which “seek[] redress from a governmental entity or officer or

18 employee of a government entity,” and dismiss those, or any portion of those, which are

19 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or

20 which “seek monetary relief from a defendant who is immune.” 28 U.S.C.

21 § 1915A(b)(1)-(2); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000); Hamilton v.

22 Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011). “The purpose of § 1915A is ‘to ensure that

23 the targets of frivolous or malicious suits need not bear the expense of responding.’”

24 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

25 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

26 Thus, regardless of whether Garrett paid the full filing fee, or was eligible to

27 proceed IFP, the Court’s preliminary review of his Complaint reveals that this case is also

28 subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it is

1 duplicative of another civil rights Complaint he filed in the Southern District of

2 California on March 15, 2019. See Garrett v. Diaz, et al.., S.D. Cal. Civil Case No. 3:19-

3 cv-00510-CAB-MSB (“Diaz I”) (ECF No. 1); Bias, 508 F.3d at 1225.

4 A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it

5 “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d

6 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and

7 internal quotations omitted). In Diaz 1, Plaintiff named the same RJD officials as

8 Defendants as he does in this case, and he alleged the identical claims. Compare Compl.,

9 ECF No. 1 in 3:19-cv000510-CAB-MSB at 1‒15, with Compl., ECF No. 1 in 3:21-

10 cv00265-WQH-MDD at 1‒16. In fact, Garrett concedes in his current Complaint that he

11 “filed other lawsuits in state or federal courts dealing with the same or similar facts

12 involved in this case,” cites directly to Garrett v. Diaz, et al., S.D. Cal. Civil Case No.

13 3:19-cv-00510-CAB-MSB, and attaches a copy of the Ninth Circuit’s January 22, 2021

14 Order summarily affirming Judge Bencivengo’s May 10, 2019 sua sponte dismissal of his

15 Complaint in that case for failing to state a claim pursuant to 28 U.S.C.

16 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Compl. at 17‒18 (concluding that “the

17 questions raised in this appeal are so insubstantial as to not require further argument.”).

18 Because Garrett admits and the Court has confirmed he has previously sought to

19 bring the identical claims presented in the instant case against the same parties in Diaz I,

20 it must also dismiss this duplicative and subsequently filed civil action as frivolous

21 pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at

22 446 n.1; see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688–89 (9th Cir.

23 2007) (“[I]n assessing whether the second action is duplicative of the first, we examine

24 whether the causes of action and relief sought, as well as the parties or privies to the

25 action, are the same.”), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880,

26 904 (2008).

27 / / /

28 / / /

1 Conclusion and Order

2 For the reasons set forth above, the Court:

3 1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 3) as barred by 28

4 ||U.S.C. § 1915(g);

5 2) DISMISSES this civil action without prejudice based on Plaintiffs failure

6 || to pay the full statutory and administrative $402 civil filing fee required by 28 U.S.C.

7 1914 (a), and as frivolous pursuant to 28 U.S.C. § 1915A(b)(1);

8 3) | CERTIFIES that an IFP appeal from this Order would not be taken in good

9 || faith pursuant to 28 U.S.C. § 1915(a)(3); and

10 4) DIRECTS the Clerk of Court to close the file.

11 IT IS SO ORDERED.

12

13 || Dated: July 28, 2021 BE: Kho □□□ Ma

14 Hon, William Q. Hayes

15 United States District Court

16

17

18

19

20

21

22

23

24

25

26

27

28

9 one