stating filing of false disciplinary report against inmate not actionable under Section 25 1983 where procedural due process protections are provided
How later courts described this case
- stating filing of false disciplinary report against inmate not actionable under Section 25 1983 where procedural due process protections are provided
- “[I]t is the circumstances at the time of the filing of the 16 complaint that matters for purposes of the ‘imminent danger’ exception to § 1915(g).”
- stating constructive filing date for 27 prisoner giving pleading to prison authorities is date pleading is signed
- stating whether a ground for dismissal constitutes a dismissal for failure to state claim depends upon whether allegations in 26 complaint suffice to establish that ground, and declining to find that failure to exhaust cannot be 27 basis for dismissal for failure to state claim
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 CARLOS MARTINEZ, 1 No. 1:22-cv-01170 GSA (PC)
12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW
CAUSE WHY IN FORMA PAUPERIS
13 v. STATUS SHOULD NOT BE REVOKED
CONSISTENT WITH 28 U.S.C. § 1915(g)
14 SECRETARY OF CALIFORNIA
DEPARTMENT OF CORRECTIONS (ECF No. 6)
15 AND REHABILITATION, et al.,
PLAINTIFF'S SHOWING OF CAUSE, OR, IN
16 Defendants. THE ALTERNATIVE, HIS PAYMENT OF
THE FILING FEE IN FULL, DUE IN THIRTY
17 DAYS
18 ORDER DIRECTING CLERK OF COURT TO
UPDATE COURT DOCKETING SYSTEM
19 TO INCLUDE PLAINTIFF’S ALIAS OF
“PEDRO SAUCEDO CALDERON”
20
21
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil
22
rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States
23
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This matter is at the
24
screening stage of these proceedings.
25
For the reasons stated below, Plaintiff will be ordered to show cause why his in forma
26
pauperis status (see ECF No. 6) (order granting same) should not be revoked consistent with 28
27
28 1 As discussed herein in significant detail, Plaintiff is also known as “Pedro Saucedo Calderon.”
1 U.S.C. § 1915(g) and he be required to pay the filing fee in full prior to proceeding any further
2 with this action. In addition, the Clerk of Court shall be ordered to update the Court’s docketing
3 system to include Plaintiff’s alias of “Pedro Saucedo Calderon.”
4 I. PLAINTIFF’S ALIAS
5 At the outset, and relevant to this order, the Court first takes judicial notice2 of the fact
6 that during his time as an inmate, Plaintiff has apparently also gone by the alias of “Pedro
7 Saucedo Calderon.” It appears that the federal court in the Central District of California
8 (“CACD”) noted this in Plaintiff’s records for the first time in 1999 in Pedro Saucedo Calderon
9 a.k.a. Carlos Martinez v. Roe, No. 2:99-cv-05238 UA (C.D. Cal. Aug. 17, 2000) (“Roe”), and that
10 the Court continued to make a note of this alias on its docket.3
11 Furthermore, a comparison of Plaintiff’s current CDCR ID number – E-16085 – with the
12 CDCR ID number of the Plaintiff in Roe – also E-16085 – indicates that “Calderon” and Plaintiff
13 Martinez are, in fact, the same person. Compare Roe, 2:99-cv-05238 (C.D. Cal. Aug. 17, 2000)
14 (case caption of docket indicating alias and CDCR ID number of E-16085), with Martinez 1:22-
15 cv-01170 GSA (instant matter) (case caption of docket also indicating same CDCR ID number of
16 E-16085). This being the case, the Clerk of Court will be directed to update the Court’s
17 docketing system so that it includes Plaintiff’s “Pedro Saucedo Calderon” alias. Thus, when
18 determining Plaintiff’s three strikes litigant status, the Court is considering cases that have been
19 filed by Plaintiff in federal court under his “Calderon” alias.
20
21 2 The court “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.” United States ex
22
rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
23 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court
may take judicial notice of facts that are capable of accurate determination by sources whose
24 accuracy cannot reasonably be questioned).
3 See Calderon v. Terhune, No. 2:99-cv-13406 CJC AGR (“Calderon”) (CACD stating Calderon
25
also known as “Carlos NMI Martinez” with same California Department of Corrections and
Rehabilitation (“CDCR”) ID number as Plaintiff); see also Calderon v. Dugan, No. 2:97-cv-
26
07189 HLH EE (CACD case indicating Calderon having same CDCR ID number as Plaintiff);
27 see also Martinez v. Director of the California Department of Corrections, No. 2:01-cv-00493
CJC AJW (CACD stating Plaintiff also known as “Pedro Saucedo Calderon” with same CDCR
28 ID number).
1 II. IN FORMA PAUPERIS STATUS
2 “[In forma pauperis] status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d
3 1176, 1180 (9th Cir. 1999) (brackets added); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)
4 (“To proceed in forma pauperis is a privilege not a right.”). An inmate’s in forma pauperis status
5 may be revoked at any time if the court, either sua sponte or on a motion, determines that the
6 status was improvidently granted. Keeton v. Marshall, No. CV 17-01213 FMO (KS), 2018 WL
7 4381543, at *6 (C.D. Cal. June 8, 2018) (citation omitted) (italics added); Owens v. Matthews,
8 No. CV 16-07755 JFW (KS), 2017 WL 603183, at *2 (C.D. Cal. Jan. 6, 2017) (stating same).
9 The grant or refusal of permission to proceed in forma pauperis is left to the sound discretion of
10 the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller v. Dickson, 314 F.2d
11 598 (9th Cir. 1963)). The latitude given a district court in such matters is especially broad in civil
12 actions by prisoners against their wardens and other officials. Smart, 347 F.2d at 116 (footnote
13 citation omitted); Shobe v. People of State of California, 362 F.2d 545, 546 (9th Cir. 1966) (citing
14 Smart).
15 III. THREE STRIKES RULE: 28 U.S.C. § 1915(g)
16 28 U.S.C. § 1915(g) states:
17
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
18
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
19 while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the grounds that it is frivolous, malicious,
20 or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
21
22
“It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court
23
looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d
24
1106, 1109 (9th Cir. 2013) (brackets added) (emphasis added) (citation omitted). “[Section]
25
1915(g) should be used to deny a prisoner’s in forma pauperis status only when, after careful
26
evaluation of the order dismissing an action, and other relevant information, the district court
27
determines that the action was dismissed because it was frivolous, malicious or failed to state a
28
1 claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a
2 district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is
3 frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint
4 is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of
5 the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v.
6 Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts
7 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it
8 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an
9 amended complaint” regardless of whether the case was dismissed with or without prejudice.
10 Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017).
11 An inmate who has accrued three strikes is precluded from proceeding in forma pauperis
12 unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy
13 the exception, the plaintiff must have alleged facts that demonstrate that he was “under imminent
14 danger of serious physical injury” at the time of filing the complaint. Andrews v. Cervantes, 493
15 F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing of the
16 complaint that matters for purposes of the ‘imminent danger’ exception to § 1915(g).”); see also
17 Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d
18 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v.
19 O’Guin, 144 F.3d 883, 885 (5th Cir. 1998); Lipsey v. Allison, No. 1:21-cv-00912 GSA, 2021 WL
20 2390424, at *3 (E.D. Cal. June 11, 2021) (“The availability of the imminent danger exception
21 turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or
22 later time.”).
23 The danger faced by a prisoner at the time of filing must be imminent or ongoing. See,
24 e.g., Medberry, 185 F.3d at 1193 (finding plaintiff was not in either imminent or ongoing danger
25 and denying him ability to proceed in forma pauperis as three strikes litigant). “Imminent danger
26 of serious physical injury must be a real and present threat, not merely speculative or
27 hypothetical.” Lipsey, 2012 WL 2390424, at *3; Blackman v. Mjening, No. 1:16-cv-01421 LJO
28 GSA, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). In addition, “the imminent danger
1 exception to the [Prison Litigation Reform Act’s] three strikes provision requires a nexus between
2 the alleged imminent danger and the violations of law alleged in the complaint.” Ray v. Lara, 31
3 F.4th 692, 695 (9th Cir. 2022) (brackets added).
4 IV. PLAINTIFF'S PRIOR STRIKES
5 A review of court records reveals that at least three cases brought by Plaintiff qualify as
6 strikes under Section 1915(g). The Court takes judicial notice of the following lawsuits
7 previously filed by Plaintiff and dismissed on grounds listed in Section 1915(g) prior to him
8 bringing the instant matter:
9 • Martinez v. California Department of Corrections and Rehabilitation, No. 2:08-cv-
10 01488 UA AJW (C.D. Cal. Mar. 28, 2008) (denial of request to proceed in forma
11 pauperis denied for failure to state a claim);4
12 • Martinez v. Director, California Dept. of Corrections and Rehabilitation, No. 2:09-cv-
13 07155 UA AJW (C.D. Cal. Oct. 14, 2009) (denial of request to proceed in forma
14 pauperis denied for failure to state a claim), and
15 • Martinez v. San Juan, No. 1:21-cv-00146 DAD EPG (E.D. Cal. June 10, 2021)
16 (dismissal for failure to state a claim).5
17
4 This dismissal counts as a strike, despite the fact that it was styled as a denial of Plaintiff’s
18
application to file the complaint without prepayment of the filing fees. See El Shaddai v. Zamora,
19 833 F.3d 1036, 1042 (9th Cir. 2016) (citing O’Neal, 531 F.3d at 1153. The dispositive order in
this case clearly indicates that Plaintiff’s application to proceed in forma pauperis was also denied
20 because Plaintiff’s complaint failed to state a claim upon which relief could be granted. See
Martinez v. California Department of Corrections and Rehabilitation, No. 2:08-cv-01488 UA
21 AJW (C.D. Cal. Mar. 28, 2008), ECF No. 3.
5 Roe No. 2:99-cv-05238 UA (C.D. Cal. Aug. 17, 2000) is a case of Plaintiff’s which is also
22
likely a strike under Section 1915(g). This is because in it, Plaintiff’s request to proceed in forma
23 pauperis was denied because Plaintiff had failed to exhaust his administrative remedies prior to
filing in the CACD. See Roe, ECF No. 2 (stating denial of request to proceed in forma pauperis
24 due to failure to exhaust administrative remedies).
Jones v. Bock, 549 U.S. 199 (2007) actively opts not to foreclose the possibility of
25
counting such a dismissal as a strike. See id. 549 U.S. at 215-16 (stating whether a ground for
dismissal constitutes a dismissal for failure to state claim depends upon whether allegations in
26
complaint suffice to establish that ground, and declining to find that failure to exhaust cannot be
27 basis for dismissal for failure to state claim). However, because of the inability to directly access
the complaint in Roe, the Court does not include Roe in the instant three strikes analysis.
28
1 V. DISCUSSION
2 Plaintiff brought6 the instant action on August 25, 2022.7 See ECF No. 1 at 7 (8/25/22
3 signature date on complaint); see also ECF No. 2 at 2 (8/25/22 signature date on application to
4 proceed in forma pauperis). At that time, all three of the above-referenced cases had been
5 dismissed on grounds stated in Section 1915(g). As a result, as a three strikes litigant, Plaintiff is
6 required to pay the filing fee in full, unless at the time he brought he instant action before this
7 Court, he made an adequate showing that he was in imminent danger of serious physical harm.
8 See 28 U.S.C. § 1915(g) (serious physical harm requirement).
9 A. No Imminent Danger Alleged in Instant Case
10 Plaintiff’s original complaint raises two claims. First, he contends that Defendant S.
11 Grayson, an instructor at Valley State Prison, violated his Fourteenth Amendment right to due
12 process when he retaliated against Plaintiff by writing up a false rules violation report after
13 Plaintiff failed to report for education testing. See ECF No. 1 at 3-4. This Plaintiff contends led
14 to him experiencing “emotional distress, frustration, indignity, nervousness, physical injury,
15 worry,” et cetera, because he feared that he would be denied parole because of the false report.
16 Id.
17 Next, Plaintiff alleges that Defendant “Secretary of the CDCR” (“Defendant Secretary”)
18 also violated his rights under the Fourteenth Amendment when the false rules violation report was
19 “confirmed and ratified” by Defendant Secretary. Id. at 5. Plaintiff contends that the actions of
20 Defendant Secretary also led to the same injuries and pain and suffering as the acts of Defendant
21 Grayson did. Id.
22 Plaintiff seeks monetary damages. ECF No. 1 at 7. He also seeks injunctive relief in the
23 form of reversal of the “Only Rules Violation Report” and the expungement of his records
24
6 An action has been “brought” for purposes of Section 1915(g) when a complaint and a request
25
to proceed in forma pauperis have been submitted to the Court. See O’Neal, 531 F.3d at 1152.
7 The signing date of a pleading is the earliest possible filing date pursuant to the mailbox rule.
26
See Roberts v. Marshall, 627 F.3d 768, 769 n.1 (9th Cir. 2010) (stating constructive filing date for
27 prisoner giving pleading to prison authorities is date pleading is signed); Jenkins v. Johnson, 330
F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544
28 U.S. 408 (2005).
1 dealing with or relying on the false rules violation report. Id.
2 B. Analysis
3 Neither of the above referenced claims Plaintiff has raised in the original complaint make
4 sufficient allegations that Plaintiff was in imminent danger of serious physical harm when he filed
5 it August of 2022. See generally ECF No. 1. Plaintiff does allege that because of Defendants’
6 actions, he experienced “physical injury” (see id. at 3, 5). However, Plaintiff fails to identify the
7 physical injury that allegedly resulted from Defendants issuing the false rules violation report and
8 the subsequent affirming of it on appeal. See generally ECF No. 1. The allegation of mental
9 health injury is not a proper exception to the three strikes rule. See generally 28 U.S.C. § 1915(g)
10 (only referencing imminent physical harm exception).
11 For these reasons, Plaintiff has failed to show that he meets the imminent danger of
12 serious physical harm exception identified in Section 1915(g). Therefore, as a three strikes
13 litigant, Plaintiff’s in forma pauperis status must be revoked and he must pay the filing fee in full
14 prior to proceeding any further in this action. However, prior to making this recommendation,
15 Plaintiff will be ordered to show cause why he believes that he is not a three strikes litigant, and
16 explain why he is not. As an alternative to filing the showing of cause, Plaintiff may pay the
17 filing fee in full.8 Plaintiff will be given thirty days to take either course of action.
18 Accordingly, IT IS HEREBY ORDERED that:
19 1. The Clerk of Court shall UPDATE the docketing system to reflect that Plaintiff has
20 also been known as “Pedro Saucedo Calderon.” See Pedro Saucedo Calderon a.k.a. Carlos
21 Martinez v. Roe, No. 2:99-cv-05238 UA (C.D. Cal. Aug. 17, 2000);
22
8 Prior to doing so, as a courtesy, Plaintiff is informed that it has been widely held that the Due
23 Process Clause itself does not contain any language that grants a broad right to be free from false
accusations. In other words, generally speaking, an inmate has no constitutional right to be free
24 from receiving a false rules violation report. See Freeman v. Rideout, 808 F.2d 949, 951 (2nd
Cir. 1986) (stating filing of false disciplinary report against inmate not actionable under Section
25
1983 where procedural due process protections are provided); see also Hanrahan v. Lane, 747
F.2d 1137. 1141 (7th Cir. 1984) (stating same); see, e.g., Sprouse v. Babcock, 870 F.2d 450, 452
26
(8th Cir. 1989) (stating claims based upon falsity of charges and impropriety of defendant’s
27 involvement in grievance procedure, standing alone, do not state constitutional claims). Prisoners
are, however, entitled to be free from arbitrary actions of prison officials. Wolff v. McDonnell,
28 418 U.S. 539, 558 (1974); Hanrahan, 747 F.2d at 1140 (citing Wolff).
1 2. Plaintiff is ordered to SHOW CAUSE why his in forma pauperis status (ECF No. 6)
2 should not be REVOKED;
3 3. As an ALTERNATIVE to filing the showing of cause, Plaintiff may PAY THE
4 FILING FEE IN FULL, and
5 4. Plaintiff shall have thirty days from the date of this order to take either course of
6 action.
7 Plaintiff is cautioned that failure to comply with this order within the time allotted
8 may result in a recommendation that this matter be dismissed for failure to obey a court
9 order.
10
11
IT IS SO ORDERED.
12
13 Dated: December 16, 2024 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28