United States District Court, E.D. California
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]
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.
MOTION TO PROCEED IN FORMA PAUPERIS
pending before the Court is Plaintiff's motion to proceed
in forma pauperis in this action, filed April 30, 2018. (ECF
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.” 28 U.S.C. § 1915(g).
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).
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
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
Court next screens Plaintiff's complaint, dated March 29,
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).
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).
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.