1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TRAVON LEON FREEMAN, Case No. 19-cv-02594-HSG

8 Plaintiff, ORDER GRANTING MOTION TO REVOKE PLAINTIFF’S IN FORMA 9 v. PAUPERIS STATUS; DENYING REQUEST TO DISMISS SECOND 10 TAMMY FOSS, et al., AMENDED COMPLAINT; DISMISSING DEFENDANT PAICIO; 11 Defendants. ORDERING PLAINTIFF TO PAY FILING FEE IN FULL 12 Re: Dkt. No. 45 13

14 15 Plaintiff, an inmate at Kern Valley State Prison, filed this pro se civil rights action pursuant 16 to

, regarding events that happened at Salinas Valley State Prison (“SVSP”) 17 where he was previously housed. Now pending before the Court is Defendants’ motion to revoke 18 Plaintiff’s in forma pauperis status and dismiss the second amended complaint. Dkt. No. 45. 19 Plaintiff has filed an opposition, and Defendants have filed a reply. Dkt. Nos. 46, 47.1 For the 20 reasons set forth below, the Court GRANTS the motion to revoke Plaintiff’s in forma pauperis 21 status; DENIES the request to dismiss the second amended complaint; DISMISSES defendant 22 Paicio from this action; and ORDERS Plaintiff to pay the filing fee in full. 23

24 1 Plaintiff has also filed a surreply (a response to Defendants’ reply). Dkt. No. 48. Plaintiff did not obtain the required Court approval prior to filing his surreply. Pursuant to N.D. Cal. Local 25 Rule 7-3(d), once a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval, except if new evidence has been submitted in the reply or if a relevant 26 judicial opinion was published after the date the opposition or reply was filed. Here, no new evidence was submitted in the reply, and Plaintiff was not submitting notice of a relevant judicial 27 opinion in his surreply. Accordingly, the Court does not consider the surreply in deciding this 1 BACKGROUND 2 Plaintiff commenced this action by filing a complaint that was docketed on May 14, 2019. 3 Dkt. No. 1. At that time, Plaintiff was housed at Kern Valley State Prison (“KVSP”). Dkt. No 1 4 at 1. The complaint alleged that, on November 29, 2018, while housed at SVSP, SVSP 5 correctional officials were deliberately indifferent to his safety, allowing other inmates to brutally 6 attack him. Dkt. No. 1 at 3-4. 7 On July 16, 2019, this action was dismissed because Plaintiff had failed to either pay the 8 filing fee or file a complete in forma pauperis application. Dkt. Nos. 6, 7. On August 30, 2019, 9 Plaintiff filed an amended complaint. ECF No. 10. On December 26, 2019, the Court reopened 10 this action, and vacated the order of dismissal and judgment. Dkt. No. 21. On January 13, 2020, 11 the Court granted Plaintiff leave to proceed in forma pauperis. Dkt. No. 22. On January 21, 2020, 12 the Court dismissed the amended complaint with leave to amend because the allegations were too 13 conclusory to state cognizable Section 1983 claim. Dkt. No. 23. On February 14, 2020, while 14 housed at Corcoran State Prison, Plaintiff filed a second amended complaint. Dkt. No. 24. 15 On March 9, 2020, the Court found that the second amended complaint stated a cognizable 16 Eighth Amendment failure-to-protect claim against defendants Paicio, Sandquist, Banger, 17 Cervantes, Salgado, and Foss, and ordered service on these defendants. Dkt. No. 25. 18 DISCUSSION 19 I. Motion to Revoke In Forma Pauperis Status and Dismiss Second Amended Complaint 20 A. Legal Standard 21 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 22 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 23 bring a civil action under

, i.e., may not proceed in forma pauperis, “if the 24 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 25 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 27 imminent danger of serious physical injury.”

(g). 1 gives this guidance: The phrase “fails to state a claim on which relief may be granted” parallels 2 the language of Federal Rule of Civil Procedure 12(b)(6) and apparently means the same thing. 3 Andrews v. King,

(9th Cir. 2005). A case “is frivolous if it is ‘of little weight 4 or importance: having no basis in law or fact.’”

(citation omitted). “A case is malicious if it 5 was filed with the ‘intention or desire to harm another.’”

(citation omitted). “Not all 6 unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a 7 prisoner’s IFP status only when, after careful evaluation of the order dismissing an action, and 8 other relevant information, the district court determines that the action was dismissed because it 9 was frivolous, malicious or failed to state a claim.” Id. at 1121. A district court is not required to 10 announce in an order that its dismissal constitutes a strike under Section 1915(g) for that dismissal 11 to later count as a strike. See Andrews,

n.8. 12 In determining whether a prior dismissal counts as a strike, the Court “should look to the 13 substance of the dismissed lawsuit, and not to how the district court labelled or styled the 14 dismissal.” Harris v. Harris,

(9th Cir. 2019) (internal quotations marks and 15 citation omitted). To be counted as a strike, a case must be dismissed in its entirety as frivolous, 16 malicious or for failure to state a claim.

. A dismissal based solely on a finding that the 17 plaintiff previously incurred at least three strikes, without any additional finding that the action is 18 itself frivolous, malicious or fails to state a claim, does not count as an additional strike under 19 § 1915(g). El-Shaddai v. Zamora,

(9th Cir. 2016). 20 The plain language of the imminent danger clause in § 1915(g) indicates that “imminent 21 danger” is to be assessed at the time of filing of the complaint. See Andrews v. Cervantes, 493

(9th Cir. 2007) (“Andrews II”). The conditions that existed at some earlier or 23 later time are not relevant. See Andrews II,

at 1053 & n.5 (post-filing transfer of 24 prisoner out of prison at which danger allegedly existed may have mooted request for injunctive 25 relief against alleged danger, but did not affect § 1915(g) analysis). The court “should not make 26 an overly detailed inquiry into whether the allegations qualify for the [imminent danger] 27 exception.” Andrews II,

. It is sufficient if the complaint “makes a plausible 1 filing.”

2 B. Plaintiff’s Strikes 3 In Freeman v. Kernan, No. 2:17-CV-02233-TLN-AC,

(E.D. Cal. Sept. 4 3, 2019), reconsideration denied, No. 2:17-CV-02233-TLN-AC,

(E.D. Cal. Feb. 5 5, 2020) (“Kernan”), the Eastern District found that Plaintiff had previously brought three suits 6 that could be counted as strikes under

(g) and denied him leave to proceed in forma pauperis. The three cases identified in Kernan were: (1) Freeman v. Adams, C No. 1:09- 7 cv-2129 SKO (E.D. Cal.) (“Adams”); (2) Freeman v. Hynse, C. No. 1:09-cv-2146 GBC (E.D. 8 Cal.) (“Hynse”); and (3) Freeman v. Julious, C. No. 1:09-cv-2245 DLB (E.D. Cal.) (“Julious”). 9 The Court has reviewed these three cases and agrees that the dismissals counted as strikes 10 pursuant to Section 1915(g). 11 In Adams, the court dismissed the complaint with leave to amend for failure to state a 12 claim because the complaint failed to state either a cognizable excessive force claim or a 13 cognizable conditions of confinement claim, and because the complaint was devoid of facts 14 supporting a claim against the supervisory defendants. Adams, Dkt. No. 11 (filed Feb. 9, 2011). 15 On April 18, 2011, Adams was dismissed for failure to state a claim after Plaintiff failed to file an 16 amended complaint. Adams, Dkt. Nos. 13, 14 (filed Apr. 18, 2011). 17 In Hynse, the court dismissed the complaint with leave to amend for failure to state a claim 18 because the complaint failed to allege any facts that demonstrated that the course of treatment 19 chosen by his doctors was medically unacceptable and chosen in conscious disregard of excessive 20 risk to his health; failed to link each named defendant with some affirmative act or omission that 21 demonstrated a violation of his federal rights; and violated Rules 8 and 20(a) of the Federal Rules 22 of Civil Procedure. Hynse, Dkt. No. 11 (filed Dec. 8, 2011). On January 13, 2012, Hynse was 23 dismissed for failure to state a claim after Plaintiff failed to file an amended complaint. Hynse, 24 Dkt. No. 13 (filed Jan. 13, 2012). 25 In Julious, the court dismissed the initial complaint for failure to state a claim, and then 26 dismissed the amended complaint without leave to amend for failure to state a claim, finding that 27 Plaintiff would be unable to plead additional facts that could cure the identified deficiencies. 1 that the dismissal counted as a strike pursuant to Section 1915(g). Julious, Dkt. No. 10 (filed May 2 6, 2011). 3 Adams, Hynse, and Julious were dismissed by magistrate judges for failure to state a claim 4 upon which relief may be granted. In these cases, only Plaintiff had consented to proceed before 5 the magistrate judge and the cases were dismissed before service of process on any defendant. 6 The Ninth Circuit has recently held that, although there is no longer a “dispute that a magistrate 7 judge lacks the authority to dismiss a case unless all parties have consented to proceed before the 8 magistrate judge,” a prisoner plaintiff “cannot escape” the

(g) consequences of 9 such a dismissal “through an untimely collateral attack.” Hoffman v. Pulido,

, 1149 10 (9th Cir. 2019) (citing Williams v. King,

(9th Cir. 2017)). The dismissals of 11 Adams, Hynse, and Julious constitute strikes under

(g), and are no longer 12 pending. Thus, a challenge to the three strikes consequence of each dismissal is precluded by 13 Hoffman. 14 C. Applicability of Imminent Danger Exception 15 Defendants argue that Adams, Hynse, and Julious are strikes within the meaning of Section 16 1915(g) and that the imminent danger exception does not apply because at the time the operative 17 complaint (the second amended complaint) was filed, he was housed at Corcoran State Prison, 18 where none of the Defendants are employed. Dkt. No. 45. 19 Plaintiff does not dispute that Adams, Hynse, and Julious are strikes within the meaning of 20 Section 1915(g). Rather, he opposes Defendants’ motion on the grounds that, according to its 21 plain language, Section 1915(g) does not require that the prisoner be under imminent danger of 22 serious physical injury at the time of the filing the complaint; an inmate’s transfer away from the 23 prison where he faced imminent danger does not prevent him from suing regarding past 24 constitutional violations; the Ninth Circuit has not issued a definitive opinion regarding whether 25 imminent danger is assessed at the time of the filing of the initial complaint or the filing of the 26 operative complaint; and this Court has found that Plaintiff stated a cognizable failure-to-protect 27 claim. Dkt. No. 46. 1 No. 1 at 1; Dkt. No. 1-1. The initial complaint, filed on May 14, 2019, alleges that Defendants, all 2 SVSP officials, failed to protect him from danger on November 29, 2018. In other words, the 3 complaint alleged unsafe conditions at Plaintiff’s prior place of confinement, six months prior. 4 The initial complaint makes no allegation that, at the time of filing, Plaintiff was in imminent 5 danger of serious physical injury. Accordingly, Plaintiff does not qualify for the imminent danger 6 exception to Section 1915(g). Because there was no imminent danger at the time this action was 7 commenced, the Court declines to address whether imminent danger should be assessed at the 8 time the action is filed or at the time the operative complaint is filed. 9 Plaintiff’s arguments misread Section 1915(g). Plaintiff is incorrect that Section 1915(g) 10 does not specify that imminent danger is to be assessed at the time the complaint is filed. In 11 relevant part, Section 1915(g) states: “In no event shall a prisoner bring a civil action under this 12 section [authorizing in forma pauperis proceedings] . . . unless the prisoner is under imminent 13 danger of serious physical injury.”

(g) (emphasis added). As the Ninth Circuit 14 has recognized, “[t]he [imminent danger] exception’s use of the present tense, combined with its 15 concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that the exception 16 applies if the danger existed at the time the prisoner filed the complaint.” Andrews II,

1053. Plaintiff is correct that an inmate’s transfer away from the prison where he faced imminent 18 danger does not prevent him from suing regarding past constitutional violations and that the Court 19 has found that he has stated legally cognizable claims. However, Section 1915(g) is not concerned 20 with whether an inmate’s claims are legally cognizable or with whether an inmate may bring suit. 21 Section 1915(g) prevents an inmate from proceeding in forma pauperis in a Section 1983 action 22 where he has suffered three “strikes” within the meaning of Section 1915(g), without regard to 23 whether the claims are cognizable or meritorious. As long as an inmate pays the full filing fee (or 24 is granted in forma pauperis status), the inmate may bring suit regarding claims of past 25 constitutional violations at prior places of incarceration. 26 The Court finds that Plaintiff has three strikes within the meaning of Section 1915(g), and 27 was not in imminent danger at the time he filed this action. Accordingly, the Court REVOKES 1 The Ninth Circuit has not specified how a district court should proceed following 2 revocation or denial of in forma pauperis status pursuant to Section 1915(g). Defendants argue 3 that the correct procedure following revocation of in forma pauperis status is the dismissal of the 4 entire action without prejudice because the filing fee must be paid at the time the suit is initiated. 5 In support of this argument, Defendants cite to Ninth Circuit opinions issued in 1997 and 1999, 6 Tierney v. Kupers,

(9th Cir. 1997), and Rodriguez v. Cook,

(9th Cir. 1999), and to out-of-circuit cases. However, neither Tierney nor Rodriguez 8 specifies how a court should proceed after revoking or denying in forma pauperis status pursuant 9 to Section 1915(g). In Tierney, the Ninth Circuit focused on whether certain dismissals counted as 10 strikes pursuant to Section 1915(g). The district court had dismissed the action pursuant to 11 Section 1915(g) without prejudice to re-filing upon payment of the filing fees, but the Ninth 12 Circuit’s affirmance affirmed the district court’s finding that the dismissals counted as strikes 13 pursuant to Section 1915(g), and did not express any opinion as to the correct procedure following 14 revocation or denial of in forma pauperis status. In Rodriguez, the Ninth Circuit found that the 15 prisoner plaintiff was ineligible for in forma pauperis status on appeal, and dismissed the appeal 16 without prejudice to re-filing upon payment of the filing fee. However, Rodriguez focused on the 17 constitutionality of Section 1915(g) and did not opine as to the correct procedure following 18 revocation or denial of in forma pauperis status. Since Tierney and Rodriguez were decided, the 19 Ninth Circuit has affirmed district court dismissals for failure to pay the filing fee after denying 20 applications to proceed in forma pauperis pursuant to Section 1915(g). See, e.g., Turner v. County 21 of San Diego, 708 Fed. App’x 372, 372 (9th Cir. 2017). Accordingly, the Court declines to 22 dismiss this action at this time. 23 Plaintiff may proceed with this action only if he pays the $400 filing and administrative fee 24 in full. Plaintiff must pay the full filing fee within twenty-eight (28) days of the date of this 25 order. If the full filing fee is not received by that date, the Court will dismiss this action without 26 prejudice to re-filing upon payment of the full filing fee. 27 II. Defendant Paicio 1 defendant Paicio, stating that the California Department of Corrections and Rehabilitation was 2 unable to locate an employee with that name. Dkt. No. 41. 3 On October 26, 2020, the Court ordered Plaintiff to, by November 23, 2020, either provide 4 a current address at which defendant Paicio could be served with process or, in the alternative, 5 show cause why he had not provided the information needed to locate defendant Paicio and serve 6 process on him. Dkt. No. 44 at 6-7. Plaintiff was cautioned that the failure to do so by the 7 deadline provided would result in dismissal of defendant Paicio without prejudice. See

8 The deadline to provide the information needed to locate defendant Paicio has passed, and 9 Plaintiff has neither provided the information nor has he shown cause why he has not provided 10 this information. Accordingly, defendant Paicio is DISMISSED from this action without 11 prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, which provides that if a 12 defendant is not served within ninety (90) days after the complaint is filed, the court must dismiss 13 the action without prejudice against that defendant. Fed. R. Civ. P. 4(m). 14 CONCLUSION 15 For the foregoing reasons, the Court orders as follows 16 1. The Court GRANTS Defendants’ motion to revoke Plaintiff’s in forma pauperis 17 status and DENIES Defendants’ request to dismiss the second amended complaint. Dkt. No. 45. 18 Plaintiff’s in forma pauperis status is REVOKED. Plaintiff may proceed with this action only if 19 he pays the $400 filing and administrative fee in full. Plaintiff must pay the full filing fee within 20 twenty-eight (28) days of the date of this order. If the full filing fee is not received by that date, 21 the Court will dismiss this action without prejudice to Plaintiff re-filing upon payment of the full 22 filing fee. // 23

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27 // 1 2. The Court DISMISSES Defendant Paicio from this action without prejudice 2 || pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 3 This order terminates Dkt. No. 45. 4 IT IS SO ORDERED. 5 Dated: 1/4/2021 ° aay uot S. GILLIAM, JR. □ 7 United States District Judge 8 9 10 11 12

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