finding that appellate court’s denial of 27 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 later when the [appellant] did not pay the 28 1 6
How later courts described this case
- finding that appellate court’s denial of 27 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 later when the [appellant] did not pay the 28 1 6
- noting that not “all threats 18 of self-harm by mentally ill prisoners permit them to proceed in forma pauperis”
- “The 5 exception’s use of the present tense, combined with its concern only with the initial act of 6 ‘bring[ing]’ the lawsuit, indicates to us that the exception applies if the danger existed at 7 the time the prisoner filed the complaint.”
- “[C]ourt 15 permission to proceed IFP is itself a matter of privilege and not right.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JOHN WESLEY WILLIAMS, Case No.: 22-CV-1757 JLS (DDL)
CDCR #V-34099,
12
ORDER: (1) DENYING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS
v. AS BARRED BY 28 U.S.C. § 1915(g)
14
AND (2) DISMISSING CIVIL
15 ACTION FOR FAILURE TO PAY
J. GALLEGOS, Correctional Counselor; FILING FEE REQUIRED BY
16
and B. BELTRAN, Senior Psychologist, 28 U.S.C. § 1914(a)
17
Defendants.
(ECF No. 2)
18
19
20 Plaintiff John Wesley Williams (“Plaintiff” or “Williams”), proceeding pro se and
21 incarcerated at Richard J. Donovan Correctional Facility (“RJD”), has filed a civil rights
22 action pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Williams is a frequent
23 litigator in California’s district courts, and in his current pleading he alleges Defendant
24 Correctional Counselor J. Gallegos reported and considered “erroneous and inflammatory”
25 sexual offense history during a Classification Committee hearing. Id. at 3‒4; see also ECF
26 No. 1-2 at 5‒6. Williams further contends both Gallegos and Defendant Senior
27 Psychologist B. Beltran conspired to remove him from a “work pay position,” and assigned
28 him to an “educational setting” that triggered traumatic memories and prompted acts of
1 self-harm. Compl. at 4‒5. After Williams filed grievances regarding these issues, he
2 claims Gallegos threatened to expose his sexual offense history to the “whole yard” if he
3 “follow[ed] through” with his grievances. Id. at 5. Williams seeks injunctive relief
4 preventing “ongoing terrorism by transfer from RJD[],” and unspecified “exemplary,
5 prospective, compensatory, and special damages.” Id. at 10.
6 Williams did not pay the filing fee required to commence a new civil action; instead,
7 he filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
8 See ECF No. 2 (“IFP Mot.”). However, because Williams has had far more than three civil
9 actions or appeals dismissed as frivolous or for failure to state a claim upon which relief
10 can be granted in the past, and because he does not allege facts to plausibly demonstrate
11 imminent danger of serious physical injury at the time he filed his Complaint in this action,
12 the Court DENIES his IFP Motion pursuant to 28 U.S.C. § 1915(g) and DISMISSES his
13 case WITHOUT PREJUDICE. Williams still may prosecute the claims alleged in this
14 action—but to do so he must tender a new complaint to the Clerk of the Court together
15 with the full $402 civil filing fee required by 28 U.S.C. § 1914(a).
16 MOTION TO PROCEED IN FORMA PAUPERIS
17 I. Standard of Review
18 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty.
19 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Williams, however, “face
20 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a
21 filing fee,” in monthly installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison
22 Litigation Reform Act (“PLRA”) amended § 1915 to preclude the privilege of proceeding
23 IFP in cases where the prisoner:
24 has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the
25
United States that was dismissed on the grounds that it is
26 frivolous, malicious, or fails to state a claim upon which relief
can be granted, unless the prisoner is under imminent danger of
27
serious physical injury.
28 / / /
1 28 U.S.C. § 1915(g); Coleman v. Tollefson, 575 U.S. 532, 535‒36 (2015). “This
2 subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398
3 F.3d 1113, 1116 n.1 (9th Cir. 2005); Coleman, 575 U.S. at 534. “Pursuant to § 1915(g), a
4 prisoner with three strikes or more cannot proceed IFP.” Andrews, 398 F.3d at 1116 n.1;
5 see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) [hereinafter
6 “Cervantes”] (Under the PLRA, “[p]risoners who have repeatedly brought unsuccessful
7 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective
8 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation
9 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); see also
10 Coleman, 575 U.S. at 535 (citing Jones v. Bock, 549 U.S. 199, 204 (2007)).
11 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which
12 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”
13 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court
14 styles such dismissal as a denial of the prisoner’s application to file the action without
15 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
16 When courts “review a dismissal to determine whether it counts as a strike, the style of the
17 dismissal or the procedural posture is immaterial. Instead, the central question is whether
18 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-
19 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738
20 F.3d 607, 615 (4th Cir. 2013)). “A strike-call under Section 1915(g) [] hinges exclusively
21 on the basis for the dismissal.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724‒25 (2020).
22 II. Section 1915(g) Bar
23 Pursuant to Federal Rule of Evidence 201(c)(1), and based on a thorough review of
24 federal court docket proceedings publicly available on PACER,1 this Court finds that
25
26
1 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA-
27 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d
1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D.
28
1 Plaintiff John Wesley Williams, identified as CDCR Inmate #V-34099, while incarcerated,
2 has had seven prior prisoner civil actions or appeals dismissed on the grounds that they
3 were frivolous, were malicious, or failed to state a claim upon which relief may be granted.
4 They are:
5 1) Williams v. Narramore, et al., Civil Case No. 2:03-cv-01972-UA-AJW (C.D.
Cal., West. Div.): July 25, 2003 Order denying IFP and dismissing case for “failure
6
to state a claim on which relief can be granted” pursuant to 28 U.S.C. § 1915(e)
7 [ECF No. 6] (strike one);
8
2) Williams v. Gonzer, Civil Case No. 2:04-cv-08941-UA-AJW (C.D. Cal.,
9 West. Div.): Nov. 22, 2004 Order denying IFP and dismissing case for “failure to
state a claim upon which relief may be granted” pursuant to 28 U.S.C.
10
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) [ECF No. 2] (strike two);
11
3) Williams v. Young, Civil Case No. 2:08-cv-01737-WBS-CMK (E.D. Cal.):
12
June 4, 2010 Findings and Recommendations [“F&R”] to dismiss Amended
13 Complaint for failing to state a claim upon which relief may be granted pursuant to
28 U.S.C. §§ 1915A(b)(1)&(2) [ECF No. 55]; June 29, 2010 Order adopting F&R
14
and dismissing case [ECF No. 57] (strike three);
15
4) Williams v. Hubbard, et al., Civil Case No. 2:10-cv-01717-UA-FFM (C.D.
16
Cal., West. Div.): July 6, 2010 Order denying IFP and dismissing case as “frivolous,
17 malicious, or [for] fail[ing] to state a claim upon which relief may be granted” [ECF
No. 3] (strike four);
18
19 5) Williams v. Hubbard, et al., Ninth Circuit Appeal No. 10-56230: Nov. 4, 2010
Order denying appellant’s motion to proceed IFP “because we find that the appeal
20
is frivolous” [DktEntry 6]; Dec. 8, 2010 Order dismissing appeal for failure to
21 prosecute [DktEntry 7]2 (strike five);
22 / / /
23
24
federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias, 508 F.3d at
25 1225 (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, 248 (9th Cir. 1992).
26
2 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s denial of
27 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 later when the [appellant] did not pay the
28
1 6) Williams v. Harrington, et al., Civil Case No. 1:09-cv-01823-GSA (E.D.
Cal.): May 25, 2012 Order dismissing civil action with prejudice for failure to state
2
a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915A and
3 1915(e) [ECF No. 29] (strike six); and
4
7) Williams v. Soto, et al., Ninth Circuit Appeal No. 14-15524: May 14, 2014
5 Order denying appellant’s motion to proceed IFP “because we find that the appeal
is frivolous” [DktEntry 7]; June 6, 2014 Order dismissing appeal for failure to
6
prosecute [Dkt Entry 9] (strike seven).3
7
8 Accordingly, because Williams has accumulated more than the three “strikes”
9 permitted by § 1915(g), he must make plausible allegations of imminent danger at the time
10 he filed his Complaint; otherwise, he is not entitled to the privilege of proceeding IFP. See
11 Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g)
12 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with
13 a history of abusing the legal system from continuing to abuse it while enjoying IFP
14 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt
15 permission to proceed IFP is itself a matter of privilege and not right.”).
16 III. Imminent Danger Exception
17 Once a prisoner has accumulated three strikes, §1915(g) prohibits his pursuit of any
18 subsequent IFP civil action or appeal in federal court unless he faces “imminent danger of
19 serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52 (noting
20 § 1915(g)’s exception for IFP complaints that “make[] a plausible allegation that the
21 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).
22
23
3 The Court notes Williams has previously been denied leave to proceed IFP pursuant to 28 U.S.C.
24
§ 1915(g) in this Court, and that Williams has had his IFP status revoked in the Northern and Central
25 Districts of California as well. See Williams v. Neotti, et al., Civil Case No. 3:10-cv-02672-H-BGS (S.D.
Cal. Jan. 12, 2011) (ECF No. 3); Williams v. Soto, et al., Civil Case No. 4:12-cv-03583-YGR (PR) (N.D.
26 Cal. Mar. 7, 2014) (ECF No. 36); Williams v. Moore, et al., Civil Case No. 2:13-cv-09522-PSG-FFM
(C.D. Cal., West. Div., Mar. 10, 2015) (R&R recommending denying IFP as barred by 28 U.S.C. § 1915(g)
27 [ECF No. 58]); (C.D. Cal. West. Div. May 4, 2015) (Order adopting R&R [ECF No. 60]); and Williams
v. Soto, Civil Case No. 2:15-cv-01294-PSG-FFM (C.D. Cal., West. Div., Feb. 27, 2015) (Order denying
28
1 Lest the exception “swallow the rule,” the Ninth Circuit also “requires a nexus
2 between the imminent danger and the violations of law alleged in the complaint.” Ray v.
3 Lara, 31 F.4th 692, 701 (9th Cir. 2022). “Thus, in order to qualify for the § 1915(g)
4 imminent danger exception, a three-strikes prisoner must allege imminent danger of serious
5 physical injury that is both fairly traceable to unlawful conduct alleged in his complaint
6 and redressable by the court.” Id.
7 As described above, Williams’s Complaint faults Defendants Gallegos and Beltran
8 for allegedly conspiring to remove Williams from a paid work assignment and for
9 threatening to reveal the nature of his underlying commitment offenses if he continued to
10 pursue grievances related to his classification status and placement. See Compl. at 3‒5.
11 However, he does not claim that either Gallegos or Beltran actually exposed his criminal
12 history to anyone. Nor does he allege having been attacked, targeted, or threatened by any
13 fellow inmate based on his offense history, nor claim to have faced any other “imminent
14 danger” on November 8, 2022, when he filed suit. See Cervantes, 493 F.3d at 1051‒52.
15 Instead, Williams merely identifies as a member of the Coleman and Armstrong classes,4
16 and notes that more than a month after he was reassigned to an educational program by a
17 Classification Committee on August 30, 2022, he experienced traumatic memories that
18 caused him to cut himself. Id. at 4‒5; see also Ex. A, ECF No.1-2 at 6 (“Classification
19
20
21 4 Armstrong is a class action pending in the United States District Court for the Northern District of
California that involves a “certified class of all present and future California state prison inmates and
22 parolees with disabilities [who] sued California state officials in their official capacities, seeking
injunctive relief for violations of the RA and the ADA in state prisons.” Armstrong v. Wilson, 124 F.3d
23 1019, 1021 (9th Cir. 1997). “The Coleman/Plata actions are consolidated civil rights class actions pending
in the United States District Court for the Eastern and Northern Districts of California.” Edelbacher v.
24
Cal. Bd. of Parole Hearings, No. 17-CV-04783-HSG (PR), 2017 WL 4340348, at *1 (N.D. Cal. Sept. 29,
25 2017). “The Coleman class action concerns the constitutional adequacy of the mental health care provided
to CDCR inmates and involves the class of seriously mentally ill persons in California prisons. The Plata
26 class action concerns the constitutional adequacy of CDCR’s inmate medical health care and involves the
class of state prisoners with serious medical conditions. The Three-Judge Court presiding over these class
27 actions has issued various orders related to prison overcrowding and has required the State of California
to undertake prison population reduction measures.” Id.; see also Patton v. Flores, No. 3:19-CV-00659-
28
1 Committee Chrono”). Critically, he alleges this incident occurred nearly six weeks after
2 the Classification Committee hearing, and he admits medical officials had already removed
3 him from the educational assignment that triggered his PTSD before he filed suit. See
4 Compl. at 5, see also Ex. B, ECF No. 1-2 at 2 (“Health Care Chrono CDC-128-C”) (noting
5 Plaintiff was no longer “cleared” for assignments permitting access to sharp objects, power
6 tools, or any “educational programs” “due to his MH [mental health] factors”).
7 Thus, based both on the allegations sworn in Williams’s Complaint and the exhibits
8 he attaches thereto and incorporates by reference,5 the Court finds Williams has failed to
9 demonstrate he is entitled to § 1915(g)’s “imminent danger” exception. See Cervantes,
10 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). The Court is sympathetic and takes
11 seriously his alleged act of self-mutilation on or about October 7, 2022, and assumes a
12 prisoner’s acts of self-harm could potentially “create the imminent danger” required to
13 justify an exception to § 1915(g). See e.g., Brown v. Newsom, 2019 WL 3060063, at *2
14 (E.D. Cal. 2019) (noting that, “with rare exception, a plaintiff cannot ‘create the imminent
15 danger so as to escape the three strikes provision of the PLRA, and finding no imminent
16 danger based on a prisoner’s hunger strike in response to defendants’ medically prescribed
17 renal diet); Sander v. Melvin, 873 F.3d 957, 961 (7th Cir. 2017) (noting that not “all threats
18 of self-harm by mentally ill prisoners permit them to proceed in forma pauperis”).
19 However, to “meet the imminence prong of the three-strikes exception,” Williams must
20 allege the danger he faced was “ongoing” when he filed suit, “fairly traceable to the
21 unlawful conduct alleged in his complaint,” and “addressable by the court.” See Cervantes,
22 493 F.3d at 1057; Ray, 31 F.4th at 701. He does not do so here.
23 In fact, Williams admits RJD health care officials had already revoked the
24 educational assignment he claims triggered his self-injury and further denied him access to
25
26
5 In screening a complaint, as upon consideration of a motion to dismiss pursuant to Rule 12(b)(6), the
27 court may consider “allegations contained in the pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899
28
1 sharp objects a month before he filed suit. See Compl. at 4‒5 & Ex. B. Thus, even
2 assuming Williams’s own mental health could conceivably serve as a basis for invoking an
3 exception to § 1915(g), circumstances involving “imminent danger” do not include past
4 injury or generalized fears of possible future harm. See Cervantes, 493 F.3d at 1053 (“The
5 exception’s use of the present tense, combined with its concern only with the initial act of
6 ‘bring[ing]’ the lawsuit, indicates to us that the exception applies if the danger existed at
7 the time the prisoner filed the complaint.”). The “common definition of ‘imminent’ . . .
8 does not refer only to events that are already taking place, but to those events ‘ready to take
9 place’ or ‘hanging threateningly over one’s head.’” Id. at 1056. Thus, the imminent danger
10 exception is available “for genuine emergencies,” where “time is pressing” and “a
11 threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002); see
12 also Bender v. Segovia, No. 21CV575-MMA-NLS, 2021 WL 2645910, at *2 (S.D. Cal.
13 June 28, 2021) (finding allegations of past harm, including several incidents of alleged
14 suicidal ideation and self-inflicted injury, failed to show prisoner “faced ‘imminent danger
15 of serious physical injury’” at the time of filing).
16 The Court has also considered but finds Gallegos’s alleged verbal threats to reveal
17 Williams’s offense history to others, while concerning if true, do not, without more, suffice
18 to show imminent danger. See e.g., Ransom v. Corona, 9 F. App’x 755, 756 (9th Cir. 2001)
19 (“[W]ithout allegations of actual danger or threats related to being identified as a ‘snitch,’
20 Ransom’s allegations were insufficient to state a claim.”). While such claims are sufficient
21 to satisfy the adverse action component of a First Amendment retaliation claim, see e.g.,
22 Valandingham v. Bojorquez, 866 F.2d 1135, 1141 (9th Cir. 1989), without any further
23 allegation that either Gallegos or Beltran actually exposed Williams, or any indication of
24 Williams having been thereafter targeted for attack or retribution as a result, these claims
25 are insufficient to sustain both an Eighth Amendment violation and to demonstrate the
26 “imminent danger” required to overcome § 1915(g)’s bar. See Manago v. Cahow, No.
27 5:20-cv-01220 MCS (KES), 2021 WL 621093, at *1 (C.D. Cal. Jan. 6, 2021) (finding
28 snitch label, “without facts establishing actual or pending harm [to Plaintiff]” as a result,
1 “merely speculative” and failed to “convey[] [Jeither an imminent [Jor proximate
2 ||danger”); Adams v. Dahl, No. 1:20-CV-00852-CDB PC, 2022 WL 16708264, at *3 (E.D.
3 Nov. 4, 2022) (finding claims that guards retaliated against prisoner “by stalking,
4 harassing, and threatening,” and by “creat[ing] a dangerous environment by calling [him]
5 ‘snitch’ and a “piece of shit,” insufficient to show “impending harm’); Cruz v. Calderon,
6 22-CV-05556-HSG, 2022 WL 18399570, at *3 (N.D. Cal. Dec. 16, 2022) (verbal
7 ||threats unaccompanied by further action fail to satisfy § 1915(g)’s imminent danger
8 ||exception); Alkebu-Lan v. Hazelwood, No. 21-CV-06063-JST, 2022 WL 19317, at *4
9 ||(N.D. Cal. Jan. 3, 2022) (finding allegations that prison officials “threatened □□□□□□□□□□□□
10 |/ life for appealing . . . disciplinary violations” insufficient to show imminent danger of
11 serious physical injury at the time of filing).
12 CONCLUSION
13 In light of the foregoing, the Court DENIES Williams’s IFP Motion (ECF No. 2) as
14 || barred by 28 U.S.C. § 1915(g), DISMISSES this civil action WITHOUT PREJUDICE
15 ||}based on Williams’s failure to pay the civil filing fee required by 28 U.S.C. § 1914(a),
16 || CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant
17 || to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of the Court to close the file.
18 IT IS SO ORDERED.
19 Dated: February 28, 2023 ined tt f Lue
20 on. Janis L. Sammartino
1 United States District Judge
22
23
24
25
26
27
28
9