1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 MICHAEL J. HICKS, Case No. 22-cv-06865-AMO (PR)

10 Plaintiff, ORDER OF DISMISSAL WITHOUT PREJUDICE 11 v.

12 MICHAEL YEH, et al.,

Defendants. 13

14 15 The instant action was opened on November 4, 2022, when plaintiff, a state prisoner 16 currently incarcerated at Salinas Valley State Prison (“SVSP”), filed a pro se civil rights complaint 17 under

, alleging Defendants’ deliberate indifference to his medical needs. Dkt. 1. 18 Plaintiff filed a request for leave to proceed in forma pauperis (“IFP”) but conceded that he 19 is three strikes barred and cannot proceed IFP pursuant to

(g),1 unless he is under 20 imminent danger of serious physical injury. Dkt. 2. 21 On January 11, 2023, the Honorable Judge James Donato issued an Order to Show Cause 22 and directed plaintiff to “show cause within twenty-eight (28) days, why this case should not be 23 deemed three strikes barred and the application to proceed [IFP] denied and why this case should 24

25 1 On April 26, 1996, the Prison Litigation Reform Act of 1995 (“PLRA”) was enacted and became effective. The PLRA provides that a prisoner may not bring a civil action or appeal a civil 26 judgment IFP “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 27 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 1 not be dismissed without prejudice as unexhausted.” Dkt. 12 at 2 (citing

(g)). 2 Judge Donato added as follows: “In the alternative to showing cause why the action should not be 3 dismissed as three strikes barred, plaintiff may pay the full $402.00 filing fee by the deadline.”

4 On January 30, 2023, plaintiff filed a response. Dkt. 13. Thereafter, on February 10, 5 2023, he filed a supplemental response. Dkt. 14. 6 On March 15, 2023, Judge Donato found plaintiff had on five prior occasions, while 7 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 8 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 9 which relief may be granted:

10 Plaintiff has filed more than forty cases throughout California. The Court has found the following five cases to be strikes pursuant to 11 § 1915(g): Hicks v. Lizzarrage, 16-cv-0453 JAM EFB (E.D. Cal.); Hicks v. Rowe, 11-cv-0680 CJC FMO (C.D. Cal.); Hicks v. Family 12 Healthcare, 08-cv-5978 UA FMO (C.D. Cal.); Hicks v. CDCR, 08- cv-0511 SPK (E.D. Cal.); and Hicks v. Berkson, 02-cv-5905 A WI 13 SMS (E.D. Cal.). 14 See Dkt. 15 at 2-3 (citing

(g)). Judge Donato also noted that plaintiff “d[id] not 15 contest that these are strikes but argue[d] that h[e] [was] under imminent danger of serious 16 physical injury.”

Judge Donato then considered plaintiff’s response and supplemental 17 response and further found that plaintiff was not under imminent danger of serious physical injury, 18 stating as follows:

19 Plaintiff raises claims regarding medical care that he received from defendants at multiple prisons from all four federal districts in 20 California. Only one defendant and claim concerns events that occurred in the Northern District. The Court already dismissed the 21 claims and defendants from other district without prejudice so plaintiff may pursue cases in those districts. 22 Plaintiff states that he has degenerative disc disease in his cervical 23 spine, a bone tumor in his leg and suffered a stroke. With respect to the bone tumor, plaintiff argues that he is in pain and his morphine 24 has been taken away and that he needs surgery. With respect to the degenerative disc disease, plaintiff contends that doctors are denying 25 effective pain medication. He argues that these medical conditions and lack of pain medication and appropriate care place him in 26 imminent danger.

27 Plaintiff presents serious allegations regarding his health and years. See Hicks v. Shakiba, 21-cv-1867 JLS AGS (SD. Cal.); Hicks 1 v. Clayton, 21-cv-1866 JLS WVG (S.D. Cal.); Hicks v. Gamboa, 19- cv-3010 CRB (N.D. Cal.); Hicks v. Davis, 19-cv-2424 MCE CKD 2 (E.D. Cal.)[;] Hicks v. Felder, 17-cv-1167 AWI BAM (E.D. Cal.). Reviewing these cases, it is clear that plaintiff is receiving treatment, 3 but he disagrees with the treatment. With respect to the allegations regarding events that occurred in the Northern District in this 4 complaint, plaintiff has been provided Cymbalta, Tylenol and Lidocaine patches for pain and is on a waiting list to see a 5 neurosurgeon.

6 In light of the medical treatment he is currently receiving and has been receiving over the years, plaintiff fails to demonstrate that he is under 7 imminent danger of serious physical injury. 8

(citations omitted and brackets added); see Andrews v. Cervantes,

, 1053 9 (9th Cir. 2007) (The plain language of the imminent danger clause in § 1915(g) indicates that 10 “imminent danger” is to be assessed at the time of filing of the complaint.) Judge Donato further 11 noted that “[o]ther courts have specifically found that plaintiff does not face imminent danger of 12 serious physical injury pursuant to § 1915(g) with similar allegations.” Id. at 3 (citing Hicks v. 13 Shakiba, 21-cv-1867 JLS AGS (SD. Cal.); Hicks v. Clayton, 21-cv-1866 JLS WVG (S.D. Cal.)). 14 Consequently, pursuant to § 1915 (g), Judge Donato denied plaintiff’s motion for leave to proceed 15 IFP. Dkt. 15. Judge Donato instructed plaintiff as follows:

16 To proceed with this case, he must pay the full filing fee, four hundred and two dollars ($402), within twenty-eight (28) days of the date this 17 order. Failure to pay the full filing fee may result in dismissal of this action. 18 Id. at 3-4 (emphasis in original). 19 Fifteen days later, on March 30, 2023, instead of paying the full filing fee, plaintiff 20 appealed Judge Donato’s denial of his IFP motion to the Ninth Circuit. Dkt. 16. 21 This case was reassigned to the undersigned judge on May 12, 2023. Dkts. 20, 21. 22 On May 31, 2023, the Ninth Circuit issued an order denying plaintiff’s motion for IFP on 23 appeal pursuant to § 1915(g), stating as follows: 24 Appellant’s motion to proceed in forma pauperis (Docket Entry No. 25 4) is denied because appellant has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a 26 claim upon which relief may be granted, and appellant has not alleged imminent danger of serious physical injury. See

(g); 27 Hicks v. Lizarraga, et al., 16-cv-0453 JAM-EFB (E.D. Cal. Aug. 29, to state claim); Hicks v. CDCR, 08-cv-0511 SPK (E.D. Cal. April 23, 1 2009) (dismissed for failure to state claim). 2 Dkt. 22 at 1. The Ninth Circuit further instructed plaintiff as follows:

3 Within 21 days after the date of this order, appellant shall pay $505.00 to the district court as the docketing and filing fees for this appeal and 4 file proof of payment with this court. Failure to pay the fees will result in the automatic dismissal of the appeal by the Clerk for failure to 5 prosecute, regardless of further filings. See 9th Cir. R. 42-1. 6

. 7 On June 30, 2023, the Ninth Circuit dismissed the appeal, stating as follows:

8 A review of the docket demonstrates that appellant has failed to respond to the May 31, 2023 order of this court. Pursuant to Ninth 9 Circuit Rule 42-1, this appeal is dismissed for failure to prosecute. This order served on the district court shall, 21 days after the date of 10 the order, act as the mandate of this court. 11 Dkt. 23 at 1. Twenty-one days have passed and thus a mandate has since been issued by the Ninth 12 Circuit. See

13 Because the appeal has been dismissed, the Court now reviews the instant action and 14 points out that plaintiff was given the opportunity to be heard on the question of whether the 15 instant action is subject to dismissal under § 1915(g). See Andrews v. King,

, 1120- 16 21 (9th Cir. 2005) (allowing the plaintiff an opportunity to be heard on the matter before 17 dismissing the action under § 1915(g)). Also, Judge Donato has denied plaintiff’s motion for 18 leave to proceed IFP because his response to the January 11, 2023 Order to Show Cause failed to 19 establish that § 1915(g) does not apply. See Dkt. 15. Furthermore, even though plaintiff was 20 given an opportunity to pay the full filing fee, he has failed to do so by the twenty-eight-day 21 deadline. 22 Accordingly, this action is hereby DISMISSED without prejudice to plaintiff’s refiling his 23 claims in a new case in which he pays the filing fee, and the complaint, filed November 4, 2022 24 (Dkt. 1), is hereby STRICKEN.2 25 26

27 2 The Court need not address the alternative issue relating to exhaustion raised by Judge 1 The Clerk of the Court shall terminate all pending motions and close the file. 2 IT IS SO ORDERED. 3 Dated: August 8, 2023 4 □□ noch. Wale □ ARACELI MARTINEZ-OLGUIN 6 United States District Judge 7 8 9 10 11 12

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