addressing imminent danger 18 exception for the first time in the Ninth Circuit
How later courts described this case
- addressing imminent danger 18 exception for the first time in the Ninth Circuit
- dismissal that is on appeal counts 9 as a strike during the pendency of the appeal
- reviewing dismissals that count 8 as strikes
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
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11 LEANTHONY T. WINSTON, Case No. 1:24-cv-00824-JLT-HBK (PC)
12 Plaintiff, AMENDED FINDINGS AND
RECOMMENDATIONS TO DENY
13 v. PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS UNDER 28
14 WARDEN OF USP-ATWATER, et al., U.S.C. § 1915 (g) 1
15 Defendants. FOURTEEN-DAY OBJECTION PERIOD
16 (Doc. No. 8)
17
18 Plaintiff LeAnthony T. Winston, a federal prisoner incarcerated at USP-Atwater, initiated
19 this action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on July 17,
20 2024. (Doc. No. 1, “Complaint”). On July 18, 2024, the Court directed Plaintiff to either file an
21 application to proceed in forma pauperis (“IFP”) or pay the $405.00 filing fee for civil actions
22 within 30 days. (Doc. No. 2). On August 27, 2024, after Plaintiff failed to either file an IFP
23 application or pay the filing fee, the undersigned issued a Findings and Recommendations to
24 Dismiss Plaintiff’s Complaint for failure to prosecute and comply with court orders. (Doc. No.
25 7). Thereafter, Plaintiff filed an IFP application on September 16, 2024. (Doc. No. 8).
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27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2023). These Amended Findings and Recommendations supersede and moot the Findings and
28 Recommendations issued on August 27, 2024 (Doc. No. 7).
1 Accordingly, the undersigned amends its earlier Findings and Recommendations and instead of
2 dismissing this action for Plaintiff’s failure to prosecute this action, recommends the district court
3 deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g), because Plaintiff has had at least three
4 actions or appeals that constitute strikes and the Complaint does not establish that Plaintiff meets
5 the imminent danger exception.
6 BACKGROUND AND FACTS
7 The Complaint stems from actions that occurred at USP Atwater and identifies the
8 following as defendants: (1) Warden of U.S.P. Atwater, (2) Lt. Homes, (3) Disciplinary Hearing
9 Officer Gonzales, and (4) Property Officer Kantua. (Doc. No. 1 at 1). Plaintiff alleges that
10 Defendants’ actions in denying him his legal property, confiscating his phone, and placing him in
11 the security housing unit for six months resulted in the loss of his direct appeal on his petition for
12 writ of habeas corpus and violated his Eighth Amendment rights, due process rights, constituted a
13 conspiracy and caused him “emotional distress and mental anguish, constituting psychological
14 abuse (torcher) [sic].” (Id. at 3-4). As relief, Plaintiff seeks 38 million dollars and injunctive
15 relief. (Id. at 4)
16 APPLICABLE THREE STRIKE LAW
17 The “Three Strikes Rule” states:
18 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
19 incarcerated or detained in any facility, brought an action or appeal
in the United States that was dismissed on grounds that it was
20 frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
21 physical injury.
22 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was
23 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct.
24 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought
25 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment
26 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious,
27 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir.
28 2007).
1 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning
2 the order dismissing the case must have been docketed before plaintiff initiated the current case.
3 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan,
4 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the
5 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed
6 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v.
7 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count
8 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts
9 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to
10 state a claim to count was with or without prejudice, as both count as a strike under § 1915(g).
11 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint
12 requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis
13 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
14 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without
15 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner
16 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint.
17 Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger
18 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial
19 allegations” liberally to determine whether the allegations of physical injury are plausible.
20 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015).
21 In order to avail oneself of this narrow exception, “the PLRA requires a nexus between
22 the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray
23 v. Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding
24 whether such a nexus exists, we will consider (1) whether the imminent danger of serious
25 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted
26 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at
27 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant
28 must meet both requirements of the nexus test to proceed. Id.
1 Assertions of imminent danger may be rejected as overly speculative, fanciful, or
2 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly
3 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226,
4 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine
5 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v.
6 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a
7 plaintiff at some earlier time are immaterial, as are any subsequent conditions. Cervantes, 493
8 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016).
9 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. §
10 1915(g), some courts have found that the proper procedure is to dismiss the case without
11 prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled.
12 Hardney v. Hampton, 2021 WL 4896034, at *4 (E.D. Cal. Oct. 20, 2021), report and
13 recommendation adopted, 2021 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v.
14 Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Campbell v. Vance, 2005 WL 3288400, at *1
15 (E.D. Cal. Nov. 30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the
16 filing fee before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, 2021 WL
17 1339146, report and recommendation adopted in part and rejected in part, 2021 WL 2227810
18 (E.D. Cal. June 2, 2021) (rejected immediate dismissal, instead permitting 30 days to pay filing
19 fee, and if not, then requiring dismissal); Trujillo Cruz v. White, 2019 WL 4917192 (Oct. 4,
20 2019), report and recommendation adopted in part and rejected in part, Trujillo-Cruz v. White,
21 2020 WL 1234201 (E.D. Cal. March 13, 2021) (rejected immediate dismissal, instead permitting
22 30 days to pay filing fee, and if not then requiring dismissal).
23 The preceding law must be taken in the context of congressional intent when enacting the
24 Prison Litigation Reform Act. As the United States Supreme Court noted in Lomax, “[t]he point
25 of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner suits.” Lomax,
26 140 S.Ct. at 1726. Notably, the three strikes provision, in particular, was aimed “to disincentivize
27 frivolous prisoner litigation.” Hoffman v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019).
28 ////
1 ANALYSIS
2 A. Plaintiff has three or more qualifying strikes.
3 A review of the Pacer Database reveals that Plaintiff has filed more than 25 civil actions
4 or appeals in a court of the United States.2 Although not exhaustive, for purposes of these
5 findings and recommendations, each of the following cases are properly deemed qualifying
6 § 1915(g) strikes and each was entered before Plaintiff commenced the instant action:
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8 Date of Order Case Style Disposition
Winston v. United States, Dismissed at screening stage
9 October 16, 2023
No. 1:23-cv-01086-JLT- for failure to state a claim
10 SAB (E.D. Cal.) because no Bivens remedy
available for Plaintiff’s First
11 Amendment claim.
Winston v. Robinson, No. Dismissed for failure to state
12 May 11, 2018 2:18-cv-00045-RGD-LRL a claim pursuant to 28 U.S.C.
(E.D. Va.) § 1915A because defendants
13
were not state actors and thus
14 not amenable to suit under 42
U.S.C. § 1983.
15 Winston v. Martin, No. Dismissed for failure to state
June 16, 2017
2:17-cv-315-RGD-RJK a claim pursuant to 28 U.S.C.
16
(E.D. Va.) § 1915A(b)(1) because
17 Plaintiff’s claims facially
were barred by judicial and
18 prosecutorial immunity.
Winston v. Doyle, No. 2:17- Dismissed for failure to state
19 June 6, 2017 cv-254-RGD-DEM (E.D. a claim pursuant to 28 U.S.C.
Va.) §1915A(b)(1) because
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Plaintiff’s claims facially
21 were barred by judicial and
prosecutorial immunity.
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23 Plaintiff has previously been denied IFP status by other courts because of his three-striker
24 status. See, e.g., Winston v. Smith, Case No. 2:21-cv-00285-AWA-LRL (E.D. Va. 2023). Each
25 of the above dismissals was done at the screening stages by the district court after finding the
26 operative complaint failed to state a claim and qualify as a strike under Ninth Circuit law for
27 purposes of § 1915(g).
28 2 http://pacer.uscourts.gov
1 B. The Imminent Danger Exception Does Not Apply
2 Because Plaintiff has three qualifying strikes, he may not proceed IFP unless the
3 Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical
4 injury as of the date the complaint is filed. Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th
5 Cir. 2007). Liberally construing the Complaint, there are no facts that indicate Plaintiff was in
6 imminent danger of serious physical injury at the time he filed the action. Plaintiff’s Complaint,
7 to the extent discernible, centers on the wrongful taking of his property, placement in the security
8 housing unit, and alleged interference with his filing of an appeal regarding his petition for writ of
9 habeas corpus. (See generally Doc. No. 1). Plaintiff’s claims do not by their nature imply an
10 imminent danger of serious physical injury, nor does Plaintiff allege any facts that articulate a risk
11 of imminent physical danger. While Plaintiff refers to the actions by certain Defendants as
12 causing him emotional distress and mental anguish, such phrases are insufficient to qualify as
13 posing an imminent danger of serious physical harm. See Thibodeaux v. White, 2019 WL
14 1507414, at *3 (W.D. Wash. Apr. 5, 2019) (finding no allegations of imminent physical injury
15 based on emotional distress). Accordingly, Plaintiff does not satisfy either prong of the nexus test
16 set forth above.
17 Accordingly, it is hereby RECOMMENDED:
18 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 8) be DENIED under
19 § 1915(g) due to his three-strike status and his failure to meet the imminent danger
20 exception.
21 2. Plaintiff be directed to pay the full $405.00 filing fee by a date certain, absent which
22 the Court dismiss this action without prejudice.
23 NOTICE TO PARTIES
24 These Amended Findings and Recommendations supersede and moot the previous
25 Findings and Recommendation (Doc. No. 7) issued on August 27, 2024 and will be submitted to
26 the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. §
27 636(b)(l). Within 14 days after being served with a copy of these Amended Findings and
28 Recommendations, a party may file written objections with the Court. Id.; Local Rule 304(b).
1 | The document should be captioned, “Objections to Magistrate Judge’s Amended Findings and
2 | Recommendations.” The assigned District Judge will review these Amended Findings and
3 | Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file objections within the
4 | specified time may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772
5 | F.3d 834, 839 (9th Cir. 2014).
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Dated: _ September 30, 2024 Kobo Zh fare Hack
8 HELENA M. BARCH-KUCHTA
9 UNITED STATES MAGISTRATE JUDGE
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