United States District Court, E.D. California
L. NUNLEY, UNITED STATES DISTRICT JUDGE
Peter John Arendas (“Plaintiff”), a county inmate
proceeding pro se, has filed this civil rights
action seeking relief under 42 U.S.C. § 1983. The matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
September 25, 2019, the magistrate judge filed findings and
recommendations which were served on Plaintiff and which
contained notice to Plaintiff that any objections to the
findings and recommendations were to be filed within fourteen
days. (ECF No. 9.) Plaintiff submitted a letter (ECF No. 10)
and filed two sets of objections to the Findings and
Recommendations (ECF Nos. 11, 12).
Court reviews de novo those portions of the proposed
findings of fact to which objection has been made. 28 U.S.C.
§ 636(b)(1); McDonnell Douglas Corp. v. Commodore
Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981),
cert. denied, 455 U.S. 920 (1982). As to any portion
of the proposed findings of fact to which no objection has
been made, the Court assumes its correctness and decides the
motions on the applicable law. See Orand v. United
States, 602 F.2d 207, 208 (9th Cir. 1979). The
magistrate judge's conclusions of law are reviewed de
novo. See Britt v. Simi Valley Unified Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983).
carefully reviewed the entire file under the applicable legal
standards, the Court finds the Findings and Recommendations
to be supported by the record and by the magistrate
Findings and Recommendations identify three prior cases filed
by Plaintiff that constitute “strikes” under 28
U.S.C. § 1915(g) in support of the recommendation to
deny Plaintiff's request to proceed in forma
pauperis: (1) Arendas v. Somerset County
Sheriff's Dep't, No. 3:09-cv-5782-FLW-TJB, 2010
U.S. Dist. LEXIS 59480 (D.N.J. June 16, 2010) (dismissal for
failure to state a claim for due process violation where
Plaintiff was shackled in a holding cell in the courthouse
for five hours); (2) Arendas v. Hillsborough Police
Dep't., No. 3:09-cv-5965, 2010 U.S. Dist. LEXIS
66123 (D.N.J. July 2, 2010) (dismissal for failure to state a
claim on the basis that no constitutional violations were
asserted against any person); and (3) Arendas v. Somerset
County Sheriff's Dep't, No.
3:09-cv-6061-JAP-TJB, 2010 U.S. Dist. LEXIS 66813 (D.N.J.
July 6, 2010) (dismissal for failure to state a claim on the
basis that no constitutional violations were asserted against
any person). (ECF No. 9 at 1-2.)
Court further notes these three actions are referenced in an
additional case identified by the Findings and
Recommendations, Arendas v. Kessler, No.
3:09-cv-09-6530 (KSH), 2010 U.S. Dist. LEXIS 68309 (D.N.J.
July 10, 2010), in which Plaintiff was designated a
three-strikes litigant by the United States District Court
for the District of New Jersey. (ECF No. 9 at 1.)
Plaintiff's objections are overruled for the reasons
Plaintiff argues his prior cases should not be deemed strikes
because they all occurred in the year 2010, and he was
ignorant of the law at that time. (ECF Nos. 11 at 1, 12 at 1,
3-4.) This argument is unavailing under the three-strikes
statute. See Thomas v. Felker, No.
2:09-cv-2486-GEB-CDK-P, 2012 U.S. Dist. LEXIS 80880, *7 (E.D.
Cal. June 11, 2012), recommendation adopted by 2012
U.S. Dist. LEXIS 100695 (E.D. Cal. July 18, 2012) (pro
se status does not affect analysis to determine whether
a prior dismissal constitutes a strike under § 1915(g)).
To the extent Plaintiff argues his prior cases from 2010 are
too old to be considered strikes, Plaintiff's argument
has no basis in law and therefore also fails. Accordingly,
Plaintiff's objections are overruled.
Plaintiff contends he should be granted in forma
pauperis status because none of the identified prior
cases were dismissed as “frivolous” or
“malicious.” Moreover, Plaintiff argues, the
instant lawsuit is not “frivolous.” (ECF Nos. 10,
12 at 1-2.) This argument is without merit as the Court notes
Plaintiff's prior cases were dismissed for failure to
state a claim under 28 U.S.C. § 1915(g). Regardless of
the level of personal significance Plaintiff accords to his
claims, the law is clear that a case dismissed for failure to
state a claim constitutes a strike. § 1915(g). Finally,
assuming Plaintiff is arguing that he should be permitted to
proceed in forma pauperis despite being designated a
three-strikes litigant because his instant lawsuit is
“not frivolous, ” Plaintiff's argument is not
based in law. Accordingly, Plaintiff's objections are
also objects to the Findings and Recommendations on the basis
that he had not previously “heard of” his
three-strike designation. (See ECF No. 11 at 1, 12
at 4.) This assertion, however, is belied by the fact that
Plaintiff was designated a three-strike litigant in the case
Arendas v. Kessler, No. 3:09-cv-09-6530 (KSH), which
identified the same three cases this Court has determined to
be strikes. Arendas, 2010 U.S. Dist. LEXIS 68309.
Thus, Plaintiff received proper notice of his potential
strikes. See Andrews v. King, 398 F.3d 1113, 1120
(9th Cir. 2005), citing Evans v. Ill. Dep't of
Corrs., 150 F.3d 810, 811-12 (7th Cir. 1998) (finding
that by identifying three specific examples of potential
strikes, the district court put the plaintiff on notice as to
what it had considered in denying his request to proceed
in forma pauperis).
Plaintiff appears to argue he is entitled to the
“imminent danger of serious physical injury”
exception under § 1915(g) because he has been “in
continuous danger since the date of [his] arrest [on] May 9,
2019.” (ECF No. 11 at 1-2.) Specifically, Plaintiff
contends: (1) he was previously “diagnosed with [an
unspecified] serious illness” and his right to patient
care was interrupted when he was arrested; and (2) he was
assaulted in jail on August 2, 2019, by an officer that is
not a defendant in this litigation but is named in another
lawsuit. (See ECF Nos. 7, 11 at 2, citing
Arendas v. Moore, No. 2:19-cv-01609-JAM-CKD (E.D.
Cal. filed Aug. 20, 2019)); see also Arendas v.
Alido, No. 2:19-cv-01427-TLN-DB (E.D. Cal. filed Jul.
26, 2019). Plaintiff's argument is unpersuasive.
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.
See Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055
(9th Cir. 2007); see also Abdul-Akbar v. McKelvie,
239 F.3d 307, 312-14 (3rd Cir. 2001); 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, 884
(5th Cir. 1998). As noted in the Findings and
Recommendations, Plaintiff's Complaint, which was filed
on July 17, 2019, only seeks damages for an allegedly
wrongful arrest. (ECF No. 9 at 2, citing ECF No. 1.) Such
allegations do not demonstrate Plaintiff was under any
imminent danger of serious physical injury when he filed this
action. The alleged August 2, 2019 assault occurred after the
filing of the instant lawsuit and is therefore inapplicable
to the “imminent danger” analysis. Similarly, to
the extent Plaintiff argues the determination of imminent
harm should be based on his First Amended Complaint (ECF No.
12 at 3-4), Plaintiff's argument is without merit.
See Benyamini v. Mendoza, No. CIV
S-09-2602-LKK-GGH-P, 2012 U.S. Dist. LEXIS 55348, *16 (E.D.
Cal. Apr. 19, 2012), recommendation adopted by 2012
U.S. Dist. LEXIS 113822 (E.D. Cal. Aug. 10, 2012) (rejecting
contention that imminent danger must be shown at time of
filing amended complaint) (emphasis in original). Therefore,
Plaintiff's objection is overruled.
IT IS HEREBY ORDERED that:
Findings and Recommendations filed September 25, 2019 (ECF
No. 9), are adopted in full, except for the finding that the
case Arendas v. Hillsborough Police Dep't., No.