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Berringer v. Pac

United States District Court, E.D. California

May 1, 2018

ANTHONY SCOTT BERRINGER, Plaintiff,
v.
P. PAC, et al., Defendants.

         ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF No. 1]

         Plaintiff Anthony Scott Berringer is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action on April 30, 2018.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Initially pending before the Court is Plaintiff's motion to proceed in forma pauperis in this action, filed April 30, 2018. (ECF No. 2.)

         The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related screening device which precludes prisoners with three or more “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute 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.”[1] 28 U.S.C. § 1915(g).

         Court records reflect that on three or more prior occasions, Plaintiff has brought actions while incarcerated that were dismissed as frivolous, malicious, or for the failure to state a claim upon which relief may be granted. The Court takes judicial notice of the following cases: (1) Berringer v. Salinas Valley State Prison, et al., No. 06-cv-02839-CW (N.D. Cal. Nov. 1, 2006) (dismissed as duplicative and abusive); (2) Berringer v. California Dep't of Corrections, No. 07-cv-03353-CW (N.D. Cal. July 13, 2007) (dismissed as duplicative and abusive); (3) Berringer v. Salinas Valley State Prison, et al., No. 06-cv-00270-CW (N.D. Cal. Jan. 8, 2008) (dismissed for failing to state a claim upon which relief may be granted); (4) Berringer v. Meza, et al., No. 11-cv-1439-PJH (N.D. Cal. July 5, 2011) (duplicative).

         The Court has reviewed Plaintiff's complaint, and finds that, generally construed, his allegations satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). Plaintiff's complaint, dated March 29, 2018, alleges that he was scheduled for bunion foot surgery for January 2018, but the surgery did not occur, and he was not informed whether or when it will be rescheduled. He asserts that his left toe is starting to bend to the side, showing severe disfigurement, and that he is in unbearable and excruciating pain. Plaintiff further alleges that although he has spoken to medical staff multiple times, he is denied any treatment or medication.

         Based on Plaintiff's allegations, he has satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g) for imminent risk of serious physical harm. His application is otherwise completed and signed, and is supported by documentation showing that he is unable to prepay the filing fees for these proceedings. Thus, the Court finds it appropriate to grant his application to proceed in forma pauperis.

         The Court next screens Plaintiff's complaint, dated March 29, 2018, below.

         II. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fails to state a claim on which relief may be granted, ” or that “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

         Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         III. ...


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