# (PC) Harper v. Ayala > District Court, E.D. California · December 20, 2024 URL: https://www.frixlaw.com/law-library/cases/10769341 ## Case - **Court:** District Court, E.D. California - **Decided:** December 20, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10769341 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL HARPER, Case No. 1:24-cv-01551-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN CASE TO A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 M. AYALA and C. BROWN, DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS UNDER 28 15 Defendants. U.S.C. § 1915 (g)1 16 FOURTEEN-DAY OBJECTION PERIOD 17 (Doc. No. 2) 18 19 Plaintiff Daniel Harper, a state prisoner currently confined at California State Prison 20 (“CSP”) Corcoran, initiated this action by filing a pro se civil rights complaint pursuant to 42 21 U.S.C. § 1983 on December 18, 2024. (Doc. No. 1, “Complaint”). On the same day, Plaintiff 22 filed an application to proceed in forma pauperis (“IFP”). (Doc. No. 2). The undersigned 23 recommends the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because 24 Plaintiff has had at least three actions or appeals that constitute strikes and the Complaint does not 25 establish that Plaintiff meets the imminent danger exception. 26 //// 27 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 Complaint concerns events that occurred at CSP, Corcoran and names correctional 3 officers M. Ayala and C. Brown as Defendants. In summary, after Plaintiff went through a metal 4 detector at CSP upon his arrival, Defendant Ayala directed Plaintiff to remove his knee brace 5 even though it failed to activate an alarm. When Ayala used a hand-held wand on the device, it 6 sounded an alarm, and Ayala threatened to cut it open. Plaintiff contends the alarm only sounded 7 because Ayala placed the knee brace by his belt buckle when using the wand. Plaintiff 8 immediately stood up and challenged Ayala telling him, he was not going to cut up his knee 9 brace. Another officer who overheard the exchange came over and put the knee brace, now 10 removed, back through the stationary metal detector and returned it to Plaintiff after it failed to set 11 off an alarm. Defendant Brown subsequently found Plaintiff guilty of a rule’s violation report 12 (“RVR”) for resisting staff. As relief, Plaintiff seeks $250,000 in punitive damages and to have 13 Defendants Ayala and Brown fired. 14 MOTION TO PROCEED IFP 15 All parties instituting any civil action, suit or proceeding in any district court of the United 16 States, except an application for writ of habeas corpus, must pay a filing fee of $405.00. See 28 17 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee only if the 18 party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See 19 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 20 1177 (9th Cir. 1999). 21 A. Applicable Three Strikes Law 22 The “Three Strikes Rule” states: 23 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 24 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 25 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 26 physical injury. 27 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 28 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 2 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 3 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 4 or for failure to state a claim. Id.; see also Andrews, 493 F.2d at 1052. 5 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 6 the order dismissing the case must have been docketed before plaintiff initiated the current case. 7 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 8 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 9 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed 10 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. 11 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count 12 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts 13 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to 14 state a claim to count was with or without prejudice, as both count as a strike under § 1915(g). 15 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint 16 requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis 17 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 18 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 19 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 20 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 21 Andrews, 493 F.3d at 1051-52 (addressing imminent danger exception for the first time in the 22 Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to determine 23 whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 1182, 24 1190 (9th Cir. 2015). 25 To avail oneself of this narrow exception, “the PLRA requires a nexus between the 26 alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray v. 27 Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding 28 whether such a nexus exists, we will consider (1) whether the imminent danger of serious 1 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted 2 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at 3 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant 4 must meet both requirements of the nexus test to proceed. Id. 5 Assertions of imminent danger may be rejected as overly speculative, fanciful, or 6 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly 7 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 8 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine 9 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 10 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a 11 plaintiff at some earlier time are immaterial, as are any subsequent conditions. Andrews, 493 12 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). 13 B. Plaintiff Has Three or More Qualifying Strikes. 14 Plaintiff admits in his Complaint to having previously filed at least 17 lawsuits in federal 15 court. (Doc. No. 1 at 2). A review of the PACER Database and the court’s files reveals that 16 Plaintiff has filed more than 30 civil actions or appeals in a court of the United States.2 Although 17 not exhaustive, for purposes of these findings and recommendations, each of the following cases 18 are properly deemed qualifying § 1915(g) strikes and each was entered before Plaintiff 19 commenced the instant action: 20 21 Date of Order Case Style Disposition Harper v. Wilcox, Case No. Dismissing complaint for 22 January 28, 2008 2:07-cv-01158-LKK-KJM failure to state a claim under 23 (E.D. Cal.) 28 U.S.C. § 1915A and finding any amendment 24 futile Harper v. Costa, Case No. Dismissing complaint under 25 August 31, 2009 2:07-cv-02149-LKK-DAD Federal Rules of Civil (E.D. Cal.) Procedure 12(b) for failure 26 to state claim 27 28 2 https://pacer.uscourts.gov. 1 June 3, 2008 Harper v. Williams, Case No. Dismissing second amended 2:07-cv-02166-LKK-GGH complaint for failure to state 2 (E.D. Cal.) a claim and finding any 3 further amendments futile Harper v. Morgan, Case No. Dismissing second amended June 16, 2009 4 2:08-cv-02526 (E.D. Cal.) complaint for failure to state a claim 5 6 Three of the above dismissals were done at the screening stage after finding the operative 7 complaint or amended complaint failed to state a claim and qualify as a strike under Ninth Circuit 8 law for purposes of § 1915(g). And the court’s dismissal under Rule 12(b)(6) for failure to state a 9 claim also consitutes a strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893–94 10 (9th Cir. 2011); Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 (2020). Indeed, on September 11 28, 2021, in Harper v. CDCR, 2:21-cv-0130 KJM JDP, it was determined that plaintiff has 12 “struck out” under 28 U.S.C. § 1915(g). Judgement was entered in that case on November 12, 13 2021, and plaintiff did not appeal. 14 C. The Imminent Danger Exception Does Not Apply 15 Because Plaintiff has been deemed a three-striker, he may not proceed IFP unless the 16 Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical 17 injury as of the date the complaint is filed. Andrews, 493 F.3d at 1052-53. Liberally construing 18 the Complaint there are no facts whatsoever that plausibly indicate Plaintiff was in imminent 19 danger of serious physical injury at the time he filed the instant action. The Complaint alleges 20 only that Plaintiff was improperly charged with a RVR stemming from the incident concerning 21 his knee brace. Accordingly, the Complaint does not satisfy the imminent danger exception to 22 proceed IFP. 23 Accordingly, it is hereby ORDERED: 24 The Clerk of Court shall randomly assign this case to a district judge for consideration of 25 these Findings and Recommendations. 26 It is further RECOMMENDED: 27 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be DENIED under 28 § 1915(g) due to his three-strike status and his failure to meet the imminent danger 1 exception. 2 2. Plaintiff be granted fourteen (14) days to pay the full $405.00 filing fee, absent which 3 the Court dismiss this action without prejudice. 4 NOTICE TO PARTIES 5 These Findings and Recommendations will be submitted to the United States District 6 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 7 | after being served with a copy of these Findings and Recommendations, a party may file written 8 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 9 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 10 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 11 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 12 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 13 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 14 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. 15 | § 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the 16 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 17 | Dated: _ December 20, 2024 Mihaw. □□ fares Zackte 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10769341. Public record. Not legal advice.