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Brown v. Hubbard


June 16, 2009


The opinion of the court was delivered by: Edward F. Shea United States District Judge


In May 2009, the Court revoked pro se prisoner Plaintiff Ronnie Brown's in forma pauperis ("IFP") status after concluding that he was a vexatious litigant under 28 U.S.C. § 1915(g)'s three-strikes provision. (Ct. Rec. 22.) Plaintiff moved to amend his complaint, adding various allegations of imminent physical danger in an effort to circumvent section 1915(g)'s IFP procedural bar. After review, the Court grants Plaintiff's Motion to Amend (Ct. Rec. 21) because Plaintiff is entitled to amend his complaint once as a matter of course; the Court denies in part Plaintiff's Motion to Reconsider IFP Status (Ct. Rec. 24) because the new allegations conained in the amended complaint still fail to allege imminent danger. Plaintiff is, however, given a two-week extension to remit the $350.00 filing fee. The reasons for the Court's Order are set forth below.

I. Background

On October 9, 2008, Plaintiff filed a Complaint alleging that Defendants violated his Fourteenth Amendment procedural due process rights by improperly withdrawing - and not returning - monies from his prison trust account. (Ct. Rec. 1.) Six (6) months passed while Plaintiff's Complaint was assigned to a judge, screened for merit, and then served on Defendants by the U.S. Marshals. Plaintiff did not amend his Complaint during this time.

On May 1, 2009, Defendants moved to revoke Plaintiff's IFP status because he was a vexatious litigant under section 1915(g)'s three-strikes provision, and the narrowly-defined "imminent danger" exception did not apply. (Ct. Rec. 18.)*fn1 Although the Court agreed with Defendants and signed an Order revoking Plaintiff's IFP status on May 13, 2009, a docketing delay prevented the Order from being formally entered until May 19, 2009. (Ct. Rec. 22.) During this window of delay, Plaintiff moved to amend his Complaint and add several allegations of imminent danger arising out of prison overcrowding generally and failure to receive requested medical care specifically. (Ct. Rec. 21.) Plaintiff then asked the Court to reconsider its decision to revoke his IFP status in light of the amended complaint's new allegations. (Ct. Rec. 24.)

II. Discussion

A. Plaintiff's Motion to Amend (Ct. Rec. 21)

Federal Rule of Civil Procedure 15 addresses amendments to pleadings and permits a party "to amend its pleading once as a matter of course . . . before being served with a responsive pleading . . . ." FED. R. CIV. P. 15(a)(1). Rule 7(a) provides an exclusive list of what constitutes a responsive pleading: 1) a complaint; 2) an answer to a complaint; 3) an answer to a designated counterclaim; 4) an answer to a cross-claim; 5) a third-party complaint; 6) an answer to a third-party complaint; and 7) a reply to an answer when ordered by the court. FED. R. CIV. P. 7(a). Pretrial motions attacking the pleadings are not responsive pleadings. See McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (finding that a Rule 12(b)(6) motion to dismiss was not a responsive pleading); see also 3-15 MOORE'S FEDERAL PRACTICE - CIVIL § 15.11 (2009).

Here, Defendants have not filed a responsive pleading as defined by Rule 7(a); Plaintiff's amended complaint is therefore permissible.

B. Plaintiff's Motion for Reconsideration (Ct. Rec. 24)

Plaintiff asks the Court to reconsider its decision to revoke his IFP status based on the new allegations contained in the amended complaint. Reconsideration is appropriate if the district court is presented with 1) newly-discovered evidence, 2) an intervening change in controlling law, or 3) evidence that its decision was manifestly unjust. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003); 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

The only plausible basis for reconsideration here is that Plaintiff presented the Court with newly-discovered evidence, i.e., an amended complaint purportedly alleging imminent danger. The Court now turns to these new allegations.

Section 1915(g)'s imminent-danger exception "applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The exception's availability "turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time." Id. at 1053. Moreover, the alleged danger must be "ongoing." Id.

Here, Plaintiff alleges that imminent danger exists because Defendants denied 1) his request for an opthamologist consultation, and 2) him adequate medical treatment for injuries he received in a prison shower accident. Plaintiff's claimed imminent dangers are unpersuasive and do not qualify him for section 1915(g)'s imminent-danger exception for two (2) reasons. First, the alleged denial of an opthamology consultation occurred on one occasion at an unspecified time in the past and is therefore not an "ongoing" danger. Id. Second, claims of past inadequate medical care do not place Plaintiff in imminent and ongoing danger of serious physical injury. See generally id.; see also Ford v. Foti, 2001 U.S. Dist. LEXIS 12086 at *1 (E.D. La. July 25, 2001) (finding that an allegation of inadequate medical care for Hepatitis-C did not demonstrate imminent danger of serious physical injury); Cain v. Shilling, 2001 WL 515263 at *2 (W.D. Va. March 13, 2001) (noting that prisoner did not establish "imminent danger of serious physical injury" when he complained of not receiving the medical treatment he believed necessary). Because there is no ongoing, imminent danger alleged, reconsidering the revocation of Plaintiff's IFP status is unnecessary.

Reinforcing the Court's decision is Plaintiff's frequent-filing history, his conduct in the present matter, and the policy rationale behind section 1915(g) as discussed below.

1. Frequent-Filing History

Plaintiff is a seasoned prisoner litigant. To date, he has filed fifty-four (54) civil actions in district court (including the present matter), nineteen (19) of which have been addressed on appeal. (Ct. Rec. 18-3.) Many of these lawsuits are duplicative. For example,*fn2 Brown v. Hubbard et. al., CV-09-581-KJM, and Brown v. Hubbard et. al., CV-08-2443-EFB, both involve constitutional deprivations arising from injuries sustained in a shower accident; Brown v. Hubbard et. al., CV-08-1191-BLW, Brown v. Hubbard et. al., CV-08-1434-SMS, and Brown v. Hubbard et. al., CV-08-1252-WMW, all involve alleged property deprivations and Americans with Disability Act violations; and Brown v. California Department of Corrections ("CDC"), CV-08-151-WBS, Brown v. CDC, CV-08-1880-EFB, and the present matter all involve allegations that the CDC improperly withdrew -and did not return - monies from Plaintiff's prison trust account. These are just examples. And as the Court previously stated, at least four (4) of Plaintiff's prior cases qualify as "strikes" under section 1915(g).

(Ct. Rec. 22.) This lengthy and duplicative litigation history draws attention to the purported good-faith basis for Plaintiff's prison lawsuits generally.

2. Conduct in the Present Matter

A prisoner's conduct is instructive when assessing whether he raises a legitimate, plausible allegation that imminent danger existed at the time of filing. Here, the timing of Plaintiff's amended complaint is particularly instructive. Plaintiff filed this matter in October 2008 and made no effort to amend his complaint for seven (7) months, even though the "imminent" injuries he allegedly suffered (deprivation of medical care) occurred as far back as December 2007. (Ct. Rec. 20.) Only when Defendants pointed out that Plaintiff was a vexatious litigant who failed to meet section 1915(g)'s imminent-danger exception did Plaintiff promptly move the Court to amend his complaint and add multiple claims alleging imminent danger of serious physical injury. The coincidence is too obvious to ignore. Plaintiff's strategic addition of claims designed to circumvent section 1915(g)'s IFP filing bar bespeaks bad faith.

Also instructive are the alleged imminent dangers themselves. For example, Plaintiff alleges that Defendants denied him adequate medical treatment for head injuries and a lipoma that he received when Folsom prison's shower ceiling collapsed on his head. This claim is being addressed in another pending civil matter before Judge Kimberly J. Mueller. See Brown v. Hubbard et. al., CV-09-581-KJM. Plaintiff's other claimed imminent dangers - namely, assertions that Folsom prison is overcrowded and that he was denied an opthamologist consult - are generic, unsupported by any documentation, and were the subject of prior cases. See, e.g., Brown v. Hubbard et. al., CV-08-2443-EFB. In other words, Plaintiff "copied and pasted" allegations from his other district court matters - past and present - in an effort to create an imminent danger in this matter and thereby bypass section 1915(g)'s IFP filing bar. Such bad faith tactics are unacceptable.

3. Congressional Policy Behind Section 1915(g)

Congress enacted section 1915(g)'s three-strikes provision to limit the filing of frivolous and vexatious prisoner lawsuits "caused by the fact that prisoners easily obtained IFP status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants." Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); see also 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995 (statement of Sen. Kyl) ("Filing of frivolous civil rights lawsuits has become a recreational activity for long-term residents of prisoners."); 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("Prisoners will 'litigate at the drop of a hat,' simply because they have little to lose and everything to gain."). The Court cannot countenance Plaintiff's deliberate attempt to sidestep Congressional policy of reducing the number of frivolous filings by simply pairing frivolous claims with claims designed to trigger section 1915(g)'s imminent-danger exception.*fn3

In sum, Plaintiff has not alleged plausible allegations of imminent danger. See Cervantes, 493 F.3d at 1055. Instead, he has strategically inserted claims from other cases in the hopes of circumventing section 1915(g)'s IFP filing bar. If left unchecked, Plaintiff's calculated conduct would render meaningless the Congressional policy behind section 1915(g) - advancing meritorious prisoner actions while reducing frivolous ones. The Court therefore finds no basis to reconsider its decision to revoke Plaintiff's IFP status. The Court will, however, give Plaintiff an additional two (2) weeks to submit the filing fee in full. No further action will be taken by the Court until that time. See Boreland v. Vaughn, 2000 U.S. Dist. LEXIS 2463 at *11 n.5 (E.D. Pa. March 7, 2000) ("While the reimittance of a filing fee is not jurisdictional, it is an 'administrative hurdle' that the Court may require a plaintiff clear before considering the merits of the case.") (citing McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996)).

III. Conclusion


1. Plaintiff's Motion to Amend Complaint (Ct. Rec. 21) is GRANTED.

2. Plaintiff's Motion for Reconsideration (Ct. Rec. 24) is GRANTED (time extension to remit the $350.00 filing fee) and DENIED (reconsideration) IN PART.

3. Plaintiff shall remit the full $350.00 filing fee to the Clerk's Office for the Eastern District of California, 501 I Street, Sacramento, CA 95814, within two (2) weeks from the date of this Order. Failure to do so will be construed as consent to dismissal for failure to prosecute.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Plaintiff and defense counsel.

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