United States District Court, N.D. California
ORDER OF SERVICE AND PARTIAL DISMISSAL
DONNA M. RYU, Magistrate Judge.
Plaintiff, a state prisoner currently incarcerated at California State Prison - Sacramento ("CSP-Sacramento"), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 stemming from alleged constitutional violations that occurred while he was incarcerated at Salinas Valley State Prison ("SVSP"). Plaintiff has consented to magistrate judge jurisdiction, and this matter has been assigned to the undersigned Magistrate Judge. On April 9, 2014, the Court granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP").
Venue is proper because the events giving rise to the claims are alleged to have occurred at SVSP, which is located in this judicial district. See 28 U.S.C. § 1391(b).
In his complaint, Plaintiff states claims for deliberate indifference to his serious medical and dental needs while he was housed at SVSP from June 2010 to February 2012. Plaintiff names the following Defendants: Secretary of the California Department of Corrections and Rehabilitation ("CDCR") Matthew Cate; CDCR Federal Receiver J. Clark Kelso, the California Correctional Health Care Services ("CCHCS") Chief Executive Officer Gerald Ellis; CCHCS Chiefs L. D. Zamora and N. Warren; SVSP Warden Anthony Hedgpeth; SVSP Dental Director K. Myers; SVSP Inmate Dental Service Program B. Quattlebaum; SVSP Physicians Bright, Mack, Sullivan and Tuvera; "John Doe, Director of CDCR"; and "John Doe, Chief Medical Officer." Compl. at 1. Plaintiff seeks injunctive relief and monetary damages.
I. 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. § 1915 "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). Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).
For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little weight or importance: having no basis in law or fact, " and the word "malicious" refers to a case "failed with the intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as strikes for § 1915(g) purposes. See id. Dismissal of an action under § 1915(g) should only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim." Id.
Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden of persuasion that § 1915(g) does not bar pauper status for him. Id . Andrews implicitly allows the Court to sua sponte raise the § 1915(g) bar, but requires the Court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal under § 1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action.
At the time Plaintiff was granted leave to proceed IFP, the Court was unaware of the basis of the dismissals of his cases in other districts, i.e., the United States District Court for the Eastern District of California. However, a review of the dismissal orders in Plaintiff's prior prisoner actions reveals that he has had at least three such cases dismissed on the ground that they failed to state a claim upon which relief may be granted. The following dismissals may be counted as dismissals for purposes of § 1915(g): (1) Thomas v. Gomez, No. Civ. F 00-5497 AWI DLB (E.D. Cal. Sept. 11, 2000) (civil rights action dismissed for failure to state a claim upon which relief may be granted); (2) Thomas v. Nicholus, No. Civ. F 99-6377 OWW HGB (E.D. Cal. Oct. 11, 2000) (same); and (3) Thomas v. Gomez, No. Civ. F 99-6662 REC DLB (E.D. Cal. Oct. 12, 2000) (same).
The Court finds that, pursuant to Andrews, 398 F.3d at 1121, Plaintiff has been given notice of the potential applicability of § 1915(g) because he acknowledged in his complaint that he has brought 3 or more actions in a court of the United States that were dismissed on the grounds that they failed to state a claim upon which relief may be granted. Compl. at 5-7.
Plaintiff therefore may proceed IFP only if he is seeking relief from a danger of serious physical injury which is "imminent" at the time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). In his complaint, Plaintiff claims that he is under imminent danger of further serious physical injury. Compl. at 5. Specifically, he claims that he "suffer[s] pain from severe gingival inflammation and palpation and severe periodontitis." Id. He further alleges that the "dental symptom[s] [he] describe[s] are at least as serious as those that the Court and other circuits previously have deemed sufficient to trigger the imminent danger exception." Id. Because Plaintiff's allegation that he falls under the "imminent" danger exception could allow him to meet his burden of showing that § 1915(g) does not bar pauper status for him, a dismissal under § 1915(g) may not be proper at this time. In view of this, leave to proceed IFP may not have been granted erroneously. Thus, the Court will review the complaint and serve Defendants, as explained below. If Defendants choose to argue that Plaintiff's IFP should be revoked, i.e., challenging whether he falls under the "imminent" danger exception to dismissal under § 1915(g), then the Court will consider such an argument at that juncture.
II. Review of Complaint
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under ...