FINDINGS AND RECOMMENDATIONS RECOMMENDING REVOKING IFP STATUS PURSUANT SECTION 1915(g) AND DISMISSING ACTION FOR RULE 11(b)(3) SANCTION (Doc. 1)
Leonard Hadley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 17, 2010, Plaintiff filed his original complaint. (Doc. 1). On July 7, 2010, Plaintiff filed the first amended complaint. On May 24, 2011, the Court issued an Order to Show Cause as to why Plaintiff's IFP status should not be revoked and why this case should not be dismissed without prejudice as a Rule 11(b)(3) sanction for misrepresenting Plaintiff's litigation history on his complaint. (Doc. 11). On June 13, 2011, Plaintiff filed a response to the Court's Order to Show Cause. (Doc. 12).
II. Preclusion from IFP Status Pursuant to Section 1915(g)
A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff filed three or more actions that were dismissed as frivolous, malicious or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, 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, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).*fn1 Determining whether Plaintiff's actions count as strikes under section 1915(g) requires the Court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if, in fact, "the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
After careful review of the dismissal orders, the Court takes judicial notice that Plaintiff has four prior actions dismissed for being frivolous or for failing to state a claim for which relief can be granted under section 1983. Those cases are: 1) Hadley v. Rios, et al., 2:05-cv-07726-UA-PLA (C.D. Cal.) (dismissed December 1, 2005, for being frivolous); 2) Hadley v. Rios, et al., 5:05-cv-01185-UA-PLA (C.D. Cal.) (dismissed February 2, 2006, for being frivolous); 3) Hadley v. State of California, et al., 2:07-cv-01592-FCD-EFB (E.D. Cal.) (dismissed March 13, 2008, for failure to state a claim); and 4) Hadley v. Yates, et al., 2:09-cv-01583-GEB-CMK (E.D. Cal.) (dismissed November 30, 2009, for failure to state a claim).
Moreover, the Court finds that a dismissal pursuant to Heck counts as a strike under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on a denial of "the existence of a cause of action." Heck, 512 U.S. at 489. Additionally, several other courts have held that dismissals under Heck count as strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is legally frivolous."); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) ("[I]n light of Heck, the complaint was properly dismissed for failure to state a claim."). Therefore, the Court takes judicial notice that the Plaintiff has five prior actions dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) for not stating a cognizable claim under section 1983. Those cases are: 5) Hadley v. San Bernardino Public Defenders Office, et al., 2:03-cv-01251-UA-PLA (C.D. Cal.) (dismissed March 3, 2003, for failure to state a claim under Heck); 6) Hadley v. San Bernardino County, et al., 5:05-cv-00920-UA-PLA (C.D. Cal.) (dismissed November 2, 2005, for failure to state a claim under Heck); 7) Hadley v. San Bernardino County, et al., 5:05-cv-00951-UA-CW (C.D. Cal.) (dismissed November 8, 2005, for failure to state a claim under Heck); 8) Hadley et al v. San Bernardino County, et al., 5:05-cv-01155-UA-CW (C.D. Cal.) (dismissed February 13, 2006, for failure to state a claim under Heck) and 9) Hadley v. Schwarzenegger, et al., 5:10-cv-00017-UA-PLA (C.D. Cal.) (dismissed January 12, 2010, for failure to state a claim under Heck). The Court finds that Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff filed this action on May 17, 2010.
Under 28 U.S.C. § 1915(g) a prisoner may be excused from the three strikes provision precluding IFP status if "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff must demonstrate that he was "under imminent danger of serious physical injury" at the time he filed the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055 (9th Cir. 2007) (explaining that the exception to the three-strikes rule applies only "if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing"). The Court must determine if: 1) the potential harm amounts to "serious physical injury" and; 2) whether the threat is "imminent." Cervantes, 493 F.3d at 1055-56. Moreover, a prisoner fails to meet the exception where claims of imminent danger are conclusory. Cervantes, 493 F.3d at 1057 n.11.
Plaintiff's original and amended complaints involve the treatment and management of his medical condition called "Brugada Syndrome." (Docs. 1, 8). Plaintiff states that he had an "AICD"*fn2 device implanted for the treatment of his condition. (Docs. 1, 8). Plaintiff claims implantation of the AICD device requires a specific specialist which was repeatedly denied. (Docs. 1, 8). Plaintiff states that on or around May 7, 2010, Defendant Jeane Pierre informed Plaintiff that Plaintiff would never receive the prescribed treatment or appliances because Plaintiff was going to be paroled. (Docs. 1, 8). Although Plaintiff fails to specify, it appears from the notice of change of address that Plaintiff was paroled at some time before August 16, 2010. (Doc. 9). Plaintiff's amended complaint adds that his AICD device is "recalibrated" less frequently than recommended by the doctor who originally implanted the device (stating that the device should be "recalibrated" every ninety days) and the infrequency of "recalibrating" Plaintiff's AICD device places Plaintiff at risk of sudden death. (Doc. 8). Plaintiff also complains of not having a shower set aside for wheelchair access only and that he and other similarly situated wheelchair-bound inmates were excluded from activities and services enjoyed by the rest of the inmate population. (Doc. 1).
At the time of filing the complaint, Plaintiff failed to establish that not receiving treatment from a specific specialist would cause serious physical injury nor that, at the time of the complaint, did Plaintiff establish that the harm was imminent. See Cervantes, 493 F.3d at 1055-56. Moreover, the conclusory assertion that not having his AICD device "recalibrated" more frequently may cause sudden death fails to demonstrated that imminent danger actually existed. See Cervantes, 493 F.3d at 1057 n.11. Therefore, the Court finds that at the time of the complaint, Plaintiff failed to demonstrate that he was under imminent danger of serious physical injury.
Plaintiff does not provide any explanation or substantive response to
the Court's Order to Show Cause regarding the misrepresentation or
prior litigation in Plaintiff's complaint. (Doc. 12). The Court finds
that Plaintiff falsely states in his complaint and amended complaint
that he has only two previous or pending lawsuits in addition to this
case when, in fact, Plaintiff ...