(PC) Tunstall v. Ghaly

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA ROBERT WILLIAM TUNSTALL, Jr., No. 2:21-cv-1578 DB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS MARK GHALY, et al., 14 Defendants.

16 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 17 1983. Plaintiff claims that defendants have failed to accommodate his disability, failed to advise him of the right to remain silent during prisoner disciplinary proceedings, and have not investigated his allegations of abuse. Presently before the court is plaintiff’s motion for appointment of counsel (ECF No. 8) and his request for additional time to file an in forma pauperis (“IFP”) application (ECF No. 6). For the reasons set forth below, the court will deny the motion for an extension of time, deny the motion to appoint counsel, and recommend that plaintiff be directed to pay the filing fee in full or face dismissal of this action.

24 REQUEST FOR AN EXTENSION OF TIME 25 By order dated September 9, 2021, the court informed plaintiff that he had not submitted the proper in forma pauperis application and had not submitted a prison trust account. (ECF No. 4.) The court sent plaintiff the proper form and gave plaintiff thirty days leave to submit a properly completed in forma pauperis application. In response plaintiff filed a motion seeking an extension of time to submit his in forma pauperis application. (ECF No. 6.) However, as set forth below, the undersigned will recommend that plaintiff be barred from proceeding in forma pauperis in this action because he accrued three strikes prior to filing this action. Thus, any extension of time to submit a properly completed in forma pauperis application would be futile.

5 Therefore, the court will deny the motion for an extension of time as moot.

6 IN FORMA PAUPERIS 7 I. In Forma Pauperis Statute 8 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However, 11 [i]n no event shall a prisoner bring a civil action . . . [in forma paupers] if the prisoner has, on 3 or more prior occasions, while 12 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 13 it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 14 serious physical injury. 28 U.S.C. § 1915(g).

This “three strikes rule” was part of “a variety of reforms designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 17 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007) (brackets in original)). If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.

II. Has Plaintiff Accrued Three Strikes?

A review of actions filed by plaintiff reveal that plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless he was, at the time the complaint was filed, under imminent danger of serious physical injury. Judges have previously found that plaintiff has accrued at least three strikes. See Tunstall v. Nappi, No. 2:21-cv-0308 TLN EFB P, 2021 WL 1907190 (E.D. Cal. May 12, 2021), findings and recommendations adopted, 2021 WL 3 2806963 (E.D. Cal. July 1, 2021); Tunstall v. Alexander, No. 2:21-cv-1701 TLN AC P, 2021 WL 4 4318090 (E.D. Cal. Sept. 23, 2021), findings and recommendations adopted, 2021 WL 4975299 (E.D. Cal. Oct. 26, 2021). The court takes judicial notice of those cases and plaintiff’s prior filings described therein. MCIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (A court may take judicial notice of its own records and the records of other courts).

8 Those cases include: (1) Tunstall v. Veal, No. 2:06-cv-07272 LKK EFB (E.D. Cal.) (dismissed for failure to state a claim (ECF No. 67)); (2) Tunstall v. Knowles, No. 2:08-cv-1850 RCC (E.D. Cal.) (dismissed for failure to file an amended complaint after the court determined that the first amended complaint failed to state a claim (ECF Nos. 16, 17)); (3) Tunstall v. State of California, No. 2:11-cv-2587 KJM GGH (E.D. Cal.) (action dismissed because plaintiff failed to file an amended complaint after the court determined the original complaint failed to state a claim (ECF Nos. 4, 8)); Tunstall v. Duffy, No. 2:14-cv-2259 JAM EFB (E.D. Cal.) (action dismissed because plaintiff failed to file an amended complaint after court determined the original complaint failed to state a claim (ECF Nos. 24, 27)). The strikes described all occurred prior to plaintiff’s initiation of the present action on September 2, 2021.

18 III. Does Plaintiff Meet the Imminent Danger Exception?

19 Because plaintiff has accrued three strikes, plaintiff is precluded from proceeding in forma pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 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. See Andrews, 493 F.3d at 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury must be a real, present threat, not merely speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a patter of misconduct evidencing the likelihood of imminent serious physical injury.”

28 Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, 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).

5 The court has reviewed plaintiff’s complaint. (ECF No. 1.) Therein plaintiff alleges that the defendants have failed to respond to his requests for investigation into his allegations. He further alleges that he has received rule violation reports because his neurological issues have not been treated and claims he was not given Miranda v. Arizona, 384 U.S. 436 (1966) 1 warnings during prison disciplinary proceedings. (Id. at 3, 6.)

10 The court finds plaintiff’s allegations lack the specificity and urgency necessary to meet the imminent danger exception. Accordingly, the court will recommend that plaintiff’s motion to proceed in forma pauperis be denied and that he be required to pay the filing fee in order to proceed with this action.

14 MOTION TO APPOINT COUNSEL 15 Plaintiff filed document captioned “Consent to Magistrate Judge Jurisdiction.” (ECF No. 8.) Therein, he stated he consents to magistrate judge jurisdiction and made a request for the appointment of counsel. He argues the court should appoint counsel because he is “sensitive to lighting and has to wear Dark Tinted Glasses.” (Id. at 2.)

19 The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in Part of the Supreme Court’s holding in Miranda was that in order to protect the Fifth Amendment privilege against self-incrimination, statements made during custodial interrogations may not be introduced into evidence during a criminal trial unless an officer advised the suspect of their right to remain silent and the consequences of waiving that right. 384 U.S. 436.

1 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.

6 In the present case, the court does not find the required exceptional circumstances.

7 Plaintiff has not explained how his light sensitivity will hinder his ability to articulate his claims pro se. Additionally, at this stage of the proceedings the court is unable to determine plaintiff’s likelihood of success on the merits. Accordingly, the court will deny the motion without prejudice.

11 CONCLUSION 12 For the foregoing reasons, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion for an extension of time (ECF No. 6) is denied; 14 2. Plaintiff’s motion for the appointment of counsel (ECF No. 8) is denied; and 15 3. The Clerk of the Court is directed to randomly assign this action to a United States District Judge.

17 IT IS HEREBY RECOMMENDED that: 18 1. Plaintiff’s motion to proceed in forma pauperis be denied; 19 2. The court find plaintiff accrued three strikes under 28 U.S.C. 6 1915(g) prior to this action; and 21 3. The court order plaintiff to pay the $402.00 filing fee in order to proceed with this action.

23 These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified //// || time may result in a waiver of the right to appeal the district court’s order. Martinez v. □□□□□ 951 | F.2d 1153 (9th Cir. 1991).

3 | Dated: January 18, 2022 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE peas DB/DB Prisoner Inbox/Civil Rights/S/tuns1578.3 strikes +31