United States District Court, E.D. California
JOHN E. MITCHELL, Plaintiff,
CRM M.S. ROBICHEAUX and LIEUTENANT THOMPSON, Defendants.
AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT'S MOTION
FOR AN ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS
STATUS BE GRANTED AND THAT PLAINTIFF BE GIVEN FORTY-FIVE DAYS
TO PAY THE FILING FEE (ECF NO. 33) OBJECTIONS, IF ANY, DUE
WITHIN TWENTY-ONE DAYS
Mitchell (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
August 5, 2016. (ECF No. 1). The Court granted
Plaintiff's application to proceed in forma pauperis on
August 23, 2016. (ECF No. 6). On December 20, 2016, the Court
screened Plaintiff's complaint, and found a cognizable
claim against defendants Robicheuax and Thompson for
violation of Plaintiff's free exercise rights under the
First Amendment. (ECF No. 16). The case is now proceeding on
that claim. (ECF No. 26).
March 24, 2017, defendant Thompson filed a motion for an
order revoking Plaintiff's in forma pauperis
status. (ECF No. 33). On April 11, 2017, defendant Robicheaux
filed a notice of joinder in the motion. (ECF No. 39). On
April 17, 2017, Plaintiff filed an opposition to the motion.
(ECF No. 40). On April 24, 2017, defendant Thompson filed a
reply. (ECF No. 41).
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
U.S.C. § 1915 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
begin, it does not appear that Plaintiff is in imminent
danger. The availability of the imminent danger exception
“turns on the conditions a prisoner faced at the time
the complaint was filed, not at some earlier or later
time.” Andrews v. Cervantes, 493 F.3d 1047,
1053 (9th Cir. 2007). “Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical.” Blackman v.
Mjening, No. 116CV01421LJOGSAPC, 2016 WL 5815905, at *1
(E.D. Cal. Oct. 4, 2016). To meet his burden under §
1915(g), Plaintiff must provide “specific fact
allegations of ongoing serious physical injury, or a pattern
of misconduct evidencing the likelihood of imminent serious
physical injury.” Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003). “[V]ague and utterly
conclusory assertions” of harm are insufficient.
White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir.
1998). The “imminent danger” exception is
available “for genuine emergencies, ” where
“time is pressing” and “a threat… is
real and proximate….” Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
on the facts alleged in the complaint (ECF No. 1), it does
not appear that Plaintiff is in imminent danger. This case
now involves only a claim against defendants Robicheaux and
Thompson for violation of Plaintiff's free exercise
rights under the First Amendment because they failed to
provide Plaintiff with meals consistent with the religion of
Islam. (ECF No. 16). There are no allegations that would
suggest Plaintiff is at risk of being seriously physically
injured. Additionally, Plaintiff's opposition (ECF No.
40) does not allege that Plaintiff is in imminent danger.
Accordingly, the Court finds that Plaintiff is not in
the Court must determine whether Plaintiff “has, on 3
or more prior occasions… 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….”
Thompson argues that three actions and one appeal count as
strikes: Mitchell v. Marshall, , C.D. Cal. No.
2:10-cv-07351-UA-SH (“Marshall 1”);
Mitchell v. Marshall, , C.D. Cal. No.
2:12-cv-02048-ABC-SH (“Marshall 2”);
Mitchell v. Norton, , E.D. Cal. No.
1:12-cv-00331-GSA; and Mitchell v. Beard, , Ninth
Circuit No. 16-15470. (ECF No. 33-1, p. 2). Defendant
Thompson asks the Court to take judicial notice of the
dockets in these cases, as well as certain orders and
findings and recommendations. (ECF No. 34). The Court grants
defendant Thompson's request for judicial notice, and
takes judicial notice of these cases.
argues that Marshall 1, Marshall 2, and
Beard do not constitute strikes. (ECF No. 40).
Plaintiff states that it is up to the Court to determine
whether Norton counts as a strike. (Id. at
p. 3). Plaintiff also alleges that he ended up paying the
filing fee for the Marshall 1 and Beard
cases. (Id. at pgs. 2 & 4). However, the fact
that Plaintiff may have eventually ended up paying the filing
fee in these cases does not factor into the analysis. As
described above, the question is whether, before filing this
action, Plaintiff filed three or more cases that were
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief could be
granted. Section 1915(g). See also Belanus v. Clark,
796 F.3d 1021, 1028 (9th Cir. 2015), cert. denied,
137 S.Ct. 109 (2016), reh'g denied, 137 S.Ct.
489 (2016) (holding that a case can count as a strike even if
the plaintiff has paid the filing fee in that case).
Accordingly, whether Plaintiff paid the filing fees in any of
these four cases is irrelevant. The Court notes that
plaintiffs proceeding in forma pauerpis are still
obligated to pay the filing fee. “Notwithstanding
subsection (a), if a prisoner brings a civil action or files
an appeal in forma pauperis, the prisoner shall be required
to pay the full amount of a filing fee….”
to Plaintiff's prior cases, the Court finds that
Marshall 1, C.D. Cal. No. 2:10-cv-07351-UA-SH, was
dismissed for failure to state a claim, and thus counts as a
strike. While the assigned magistrate judge in the
Marshall 1 case only checked the box recommending
that Plaintiff be denied in forma pauperis status
because of an “[i]nadequate showing of indigency,
” the “Comments” section says “see
attachment.” (ECF No. 34-1, p. 4). The attachment
clearly states that the magistrate judge found that
Plaintiff's complaint failed to state a claim upon which
relief could be granted. (Id. at p. 5). Moreover,
the assigned district judge adopted the magistrate
judge's recommendation and denied Plaintiff's request
to proceed in forma pauperis. (Id. at p.
4). “[W]hen a district court disposes of an in forma
pauperis complaint ‘on the grounds that [the claim] is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, ' such a complaint is
‘dismissed' for purposes of § 1915(g) even if
the district court styles such dismissal as denial of the
prisoner's application to file the action without
prepayment of the full filing fee.” O'Neal v.
Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
second case that defendant Thompson argues counts as a strike
is Marshall 2, C.D. Cal. No. 2:12-cv-02048-ABC-SH.
In this case, the assigned magistrate judge issued findings
and recommendations, recommending that the case be dismissed
for failure to state a claim (ECF No. 34-2, pgs. 8 & 19).
The assigned district judge adopted the findings and