(PC) Winston v. United States

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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-00934-KES-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) 1

14 UNITED STATES OF AMERICA,

FOURTEEN-DAY OBJECTION PERIOD

15 Defendant.

(Doc. No. 6)

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17 Plaintiff LeAnthony T. Winston, a prisoner incarcerated at USP-Atwater, initiated this

18 action by filing a pro se prisoner complaint pursuant to the Federal Tort Claims Act (“FTCA”) on

19 August 12, 2024. (Doc. No. 1, “Complaint”). On August 13, 2024, the Court directed Plaintiff to

20 either file an application to proceed in forma pauperis (“IFP”) or pay the $405.00 filing fee for

21 civil actions within 30 days. (Doc. No. 3). On September 16, 2024, Plaintiff filed an IFP

22 application. (Doc. No. 8). For the reasons discussed below, the undersigned recommends the

23 district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at

24 least three actions or appeals that constitute strikes, and the Complaint does not establish that

25 Plaintiff meets the imminent danger exception.

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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

28 (E.D. Cal. 2023).

1 BACKGROUND AND FACTS

2 The events giving rise to the Complaint took place at an unspecified correctional facility.

3 (See generally Doc. No. 1). The Complaint identifies the United States of America as the sole

4 Defendant. (Id. at 1). The Complaint alleges that Lt. Prince failed to secure Plaintiff’s legal

5 property following Plaintiff’s transfer to the Security Housing Unit (“SHU”), and that Officer

6 Hannsen, the SHU Property Officer, neglected to follow CDCR regulations which required that

7 Plaintiff be provided a copy of the property inventory. (Id.). As a result, Plaintiff’s property was

8 lost, and he was prevented from prosecuting unspecified legal proceedings. (Doc. No. 1 at 2).

9 Plaintiff therefore seeks relief under the FTCA for loss of property, personal injury, and

10 negligence. (See generally id.). Plaintiff seeks $10,000 in damages. (Id. at 1).

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).

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

25 the order dismissing the case must have been docketed before plaintiff initiated the current case.

26 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan,

27 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the

28 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed

1 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v.

2 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count

3 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts

4 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to

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

6 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint

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

8 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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

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

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

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

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

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

15 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015).

16 In order to avail oneself of this narrow exception, “the PLRA requires a nexus between

17 the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray

18 v. Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding

19 whether such a nexus exists, we will consider (1) whether the imminent danger of serious

20 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted

21 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at

22 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant

23 must meet both requirements of the nexus test to proceed. Id.

24 Assertions of imminent danger may be rejected as overly speculative, fanciful, or

25 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly

26 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226,

27 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine

28 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v.

1 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a

2 plaintiff at some earlier time are immaterial, as are any subsequent conditions. Cervantes, 493

3 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016).

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

5 1915(g), some courts have found that the proper procedure is to dismiss the case without

6 prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled.

7 Hardney v. Hampton, 2021 WL 4896034, at *4 (E.D. Cal. Oct. 20, 2021), report and

8 recommendation adopted, 2021 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v.

9 Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Campbell v. Vance, 2005 WL 3288400, at *1

10 (E.D. Cal. Nov. 30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the

11 filing fee before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, 2021 WL

12 1339146, report and recommendation adopted in part and rejected in part, 2021 WL 2227810

13 (E.D. Cal. June 2, 2021) (rejected immediate dismissal, instead permitting 30 days to pay filing

14 fee, and if not, then requiring dismissal); Trujillo Cruz v. White, 2019 WL 4917192 (Oct. 4,

15 2019), report and recommendation adopted in part and rejected in part, Trujillo-Cruz v. White,

16 2020 WL 1234201 (E.D. Cal. March 13, 2021) (rejected immediate dismissal, instead permitting

17 30 days to pay filing fee, and if not then requiring dismissal).

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

19 Prison Litigation Reform Act. As the United States Supreme Court noted in Lomax, “[t]he point

20 of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner suits.” Lomax,

21 140 S.Ct. at 1726. And the three strikes provision, in particular, was aimed “to disincentivize

22 frivolous prisoner litigation.” Hoffman v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019).

23 ANALYSIS

24 A. Plaintiff has three or more qualifying strikes

25 A review of the Pacer Database reveals that Plaintiff has filed more than 25 civil actions

26 or appeals in a court of the United States.2 Although not exhaustive, for purposes of these

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28 2 http://pacer.uscourts.gov

1 findings and recommendations, each of the following cases are properly deemed qualifying

2 § 1915(g) strikes and each was entered before Plaintiff commenced the instant action:

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4 Date of Order Case Style Disposition

Winston v. United States, Dismissed at screening stage

5 October 16, 2023

No. 1:23-cv-01086-JLT- for failure to state a claim

6 SAB (E.D. Cal.) because no Bivens remedy

available for Plaintiff’s First

7 Amendment claim.

Winston v. Robinson, No. Dismissed for failure to state

8 May 11, 2018 2:18-cv-00045-RGD-LRL a claim pursuant to 28 U.S.C.

(E.D. Va.) § 1915A because defendants

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were not state actors and thus

10 not amenable to suit under 42

U.S.C. § 1983.

11 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.

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(E.D. Va.) § 1915A(b)(1) because

13 Plaintiff’s claims were

facially barred by judicial and

14 prosecutorial immunity.

Winston v. Doyle, No. 2:17- Dismissed for failure to state

15 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 were

17 facially barred by judicial and

prosecutorial immunity.

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19 Plaintiff has previously been denied IFP status by other courts because of his three-striker

20 status. See, e.g., Winston v. Smith, Case No. 2:21-cv-00285-AWA-LRL (E.D. Va. 2023). Each

21 of the above dismissals was done at the screening stages by the district court after finding the

22 operative complaint failed to state a claim and qualify as a strike under Ninth Circuit law for

23 purposes of § 1915(g).

24 B. The Imminent Danger Exception Does Not Apply

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

26 Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical

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

28 Cir. 2007). Liberally construing the Complaint, there are no facts that indicate Plaintiff was in

1 | imminent danger of serious physical injury at the time he filed the action. Plaintiff's Complaint,

2 | to the extent discernible, centers on the wrongful taking of his property, placement in the security

3 | housing unit, and interference with unspecified legal proceedings. (See generally Doc. No. 1).

4 | Plaintiff's claims do not by their nature imply an imminent danger of serious physical injury, nor

5 | does Plaintiff allege any facts that articulate a risk of imminent physical danger.

6 Because Plaintiffs claims do not plausibly allege a risk of imminent physical injury,

7 | much less one related to the underlying allegations in the Complaint, Plaintiff does not satisfy

8 || either prong of the nexus test set forth above.

9 Accordingly, it is hereby RECOMMENDED:

10 1. Plaintiffs motion to proceed in forma pauperis (Doc. No. 6) be DENIED under

11 § 1915(g) due to his three-strike status and his failure to meet the imminent danger

12 exception.

13 2. Plaintiff be directed to pay the full $405.00 filing fee by a date certain, absent which

14 the Court dismiss this action without prejudice.

15 NOTICE TO PARTIES

16 These Findings and Recommendations will be submitted to the United States District

17 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

18 | after being served with a copy of these Findings and Recommendations, a party may file written

19 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,

20 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge

21 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s

22 | failure to file objections within the specified time may result in the waiver of certain rights on

23 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

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2 Dated: _ September 30, 2024 law ZA. foareh Back

6 HELENA M. BARCH-KUCHTA

4 UNITED STATES MAGISTRATE JUDGE

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