(PC) Wilson v. Banerjee

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID W. WILSON, Case No. 1:25-cv-00344-HBK (PC) 12 Plaintiff, ORDER TO RANDOMLY ASSIGN CASE TO A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO ANU BANFERJEE, X-CHIEF EXECU. DENY PLAINTIFF’S MOTION TO OFFICER, et. al., PROCEED IN FORMA PAUPERIS UNDER 28 15 U.S.C. § 1915 (g)1 Defendants.

16 FOURTEEN-DAY OBJECTION PERIOD 17 (Doc. No. 2) 19 Plaintiff David W. Wilson, a state prisoner currently confined at the California Substance Abuse Treatment Facility (“SATF”), operated by the California Department of Corrections and Rehabilitation (“CDCR”), initiated this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 on March 24, 2025. (Doc. No. 1, “Complaint”). On the same day, Plaintiff filed an application to proceed in forma pauperis (“IFP”). (Doc. No. 2). The undersigned recommends the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at least three actions or appeals that constitute strikes and the Complaint does not establish that Plaintiff meets the imminent danger exception.

1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2023).

1 BACKGROUND AND FACTS 2 Plaintiff initiated this action by filing a civil rights complaint that was signed on March 22, 2025. (Doc. No. 1 at 20). The Complaint lists the following defendants: Anu Banerjee, former Chief Executive Officer; Oscar Galloway, Chief Executive Officer; Gloria Garcia; Raul Morales, SATF Warden; S. Gates, Chief Health Care Correspondence Appeals Branch; Joseph Bick Director of Health Care Services; Jennifer Barnetty, Director of Policy and Administrative Health Care Services; and Jeff McComber, CDCR Secretary. (Id. at 2-3). The Complaint outlines six causes of action: (1) violation of the Eighth Amendment for failure to protect; (2) violation of Title VII Civil Rights for employment discrimination; (3) deliberate indifference; (4) violation of the Fourteenth Amendment Equal Protection; (5) violations of state law; and (6) failure to supervise. (Id. at 15-17).

12 Plaintiff contends that SATF exposed African American inmates, including himself, to Valley Fever, a potentially fatal disease prevalent in the region, despite documented susceptibility among African Americans. (Id. at 4, 12). Plaintiff alleges that inmates were not informed about risks or given the opportunity to waive medical restrictions regarding their housing in high-risk areas, in violation of California regulations and previous court orders. (Id. at 4, 12, 16-17).

17 The Complaint also alleges discriminatory practices under Title VII, asserting that SATF’s staff composition—approximately 90% Hispanic—has resulted in implicit bias and discrimination against African American inmates in classification decisions and employment opportunities. (Id. at 4, 10-12, 16-17). Plaintiff claims that this discrimination has influenced housing placements, perpetuating exposure to hazardous conditions. (Id. at 13). Plaintiff seeks injunctive relief, compensatory damages, and punitive damages. (Id. at 7, 18-19).

23 MOTION TO PROCEED IFP 24 All parties instituting any civil action, suit or proceeding in any district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $405.00. See 28 26 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay this filing fee only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

2 A. Applicable Three Strikes Law 3 The “Three Strikes Rule” states: 4 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 5 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 6 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 7 physical injury.

8 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 10 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Id.; see also Andrews, 493 F.2d at 1052.

14 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning the order dismissing the case must have been docketed before plaintiff initiated the current case.

16 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to state a claim to count was with or without prejudice, as both count as a strike under § 1915(g).

24 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

27 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint.

2 Andrews, 493 F.3d at 1051-52 (addressing imminent danger exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to determine whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015).

6 To avail oneself of this narrow exception, “the PLRA requires a nexus between the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray v. Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant must meet both requirements of the nexus test to proceed. Id. 14 Assertions of imminent danger may be rejected as overly speculative, fanciful, or “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “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). Thus, conditions that posed imminent danger to a plaintiff at some earlier time are immaterial, as are any subsequent conditions. Andrews, 493 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016).

22 B. Plaintiff Has Three or More Qualifying Strikes.

23 Plaintiff states in his Complaint that he has filed “57” other lawsuits in federal court.

24 (Doc. No. 1 at 2). A review of the PACER Database further corroborates that Plaintiff has filed over fifty civil actions or appeals in a court of the United States.2 The Court takes judicial notice that Plaintiff has incurred at least three strikes prior to filing the instant action: 2 https://pacer.uscourts.gov.

1 • Wilson v. Tilton, Case No. 2:06-CV-01031-LKK-PAN (E.D. Cal. Sept. 12, 2006) 2 (dismissed for failure to state a claim) (Doc. No. 9); 3 • Wilson v. Schwartz, Case No. 2:05-CV-01649-GEB-CMK (E.D. Cal Oct. 31, 4 2006) (dismissed for failure to state a claim) (Doc. No. 26); 5 • Wilson v. Dovey, Case No. 2:06-cv-01032-FD-EFB (E.D. Cal. Mar. 8, 2007) 6 (dismissed for failure to state a claim) (Doc. No. 13); and 7 • Wilson v. Veal, Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal. Jun. 4, 2007) 8 (dismissed for failure to state a claim) (Doc. No. 11).

9 Additionally, the Court also may take judicial notice of Wilson v. California State Prison Corcoran, Case No. 1:18-cv-00424, in which district court denied Plaintiff in forma pauperis status noting that that Plaintiff had at least three “strikes” prior to filing the action and dismissing the action on January 23, 2019 after Plaintiff failed to pay the filing fee. (Doc. No. 10). On appeal, the Ninth Circuit also denied Plaintiff’s motion to proceed in forma pauperis “because appellant has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and appellant has not alleged imminent danger of serious physical injury.” 9th Cir., Case No. 19- 15237, (Doc. No. 7).

17 C. The Imminent Danger Exception Does Not Apply 18 Because Plaintiff has been deemed a three-striker, he may not proceed IFP unless the Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical injury on the date the Complaint is filed. Andrews, 493 F.3d at 1052-53. Liberally construing the Complaint, the undersigned finds that it contains no plausible allegations sufficient to allege Plaintiff faced imminent danger of serious physical injury at the time he filed the action.

23 Plaintiff’s vague and conclusory allegations regarding the risk of contracting Valley Fever do not fall within the scope of the imminent danger exception. See Stine v. Fed. Bureau of Prisons, No. 1:13-CV-1883 AWI-MJS, 2015 WL 5255377, at *6 (E.D. Cal. Sept. 9, 2015) (“[o]verly speculative and fanciful allegations do not plausibly show imminent danger”) (citing Andrews, 493 F.3d at 1057 n. 11); see also Taylor v. Carter, No. 1:13-CV-1155 SAB, 2014 WL 28 11774845, at *1 (E.D. Cal. Sept. 4, 2014) (denying motion for reconsideration on imminent danger exception where plaintiff alleged exposure to Valley Fever). Moreover, even if the Plaintiff had contracted Valley Fever, there is no indication that he is currently suffering from any illness. (See generally Doc. No. 1). Consequently, there are no allegations that from which the Court can find any basis that Plaintiff is currently under threat of imminent physical danger to invoke the § 1915(g) exception.

6 Based on the foregoing, because there are no factual allegations from which the Court can infer that Plaintiff is currently under threat of imminent physical danger sufficient to invoke the § 1915(g) exception, the undersigned recommends Plaintiff’s IFP motion be denied under § 1915(g) due to his three-strike status and his failure to meet the imminent danger exception.

10 Accordingly, it is hereby ORDERED: 11 The Clerk of Court shall randomly assign this case to a district judge for consideration of these Findings and Recommendations.

13 It is further RECOMMENDED: 14 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be DENIED under 15 § 1915(g) due to his three-strike status and his failure to meet the imminent danger 16 exception.

17 2. Plaintiff be directed to pay the $405.00 filing fee in full, absent which the Court 18 dismiss this action without prejudice.

19 NOTICE TO PARTIES 20 These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. Id.; Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. | § 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). > | Dated: _ March 27, 2025 Mile. □□□ foareA Zacks 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE