Opinion
2:24-cv-01704-JHC-DWC
11-27-2024
CARL ALONZO BROOKS, Plaintiff, v. NANCY TENNEY, et al., Defendants.
Noting Dated: December 16, 2024 5
REPORT AND RECOMMENDATION
DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
Plaintiff Carl Alonzo Brooks, proceeding pro se, initiated this action by filing a proposed civil rights complaint under 42 U.S.C. § 1983. Dkts. 1, 4-1. Plaintiff has also filed a motion to proceed in forma pauperis (“IFP”). Dkt. 4. However, Plaintiff has incurred at least three “strikes” under 28 U.S.C. § 1915(g) and is, therefore, ineligible to proceed in this action without prepayment of fees. Thus, the undersigned recommends the IFP motion (Dkt. 4) be denied and Plaintiff be required to pay the $405.00 filing fee before proceeding in this action.
I. Background
Plaintiff, who is currently incarcerated at Coyote Ridge Corrections Center (“CRCC”), filed this prisoner civil rights action concerning the allegedly inadequate representation he received in 2006 when he petitioned for habeas corpus relief from his 1978 state court conviction and sentence. Dkt. 1 at 2-11; Dkt. 4-1. Plaintiff also alleges he was denied equal protection of law during the same habeas proceedings. Dkt. 1 at 11-15; Dkt. 4-1. Plaintiff seeks $18 million in compensatory damages as well as declaratory and injunctive relief concerning his underlying state court conviction and sentence. Dkt. 1 at 15; Dkt. 4-1.
II. Screening Standard
The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915, governs IFP proceedings. Under § 1915(a), a district court may waive the filing fee for civil complaints by granting IFP status to individuals unable to afford the fee. Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). “To address concerns that prisoners proceeding IFP were burdening the federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for prisoners in an effort to discourage such suits.” Id. (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001)). Indigent prisoners may still apply for and obtain IFP status, but § 1915(b) states prisoners proceeding IFP must pay the filing fee when funds become available in their prison accounts. 28 U.S.C. §1915(b); Cervantes, 493 F.3d at 1051.
“Additionally, prisoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three-strikes rule.” Cervantes, 493 F.3d at 1051-52. The “three-strikes rule” contained in § 1915(g) of the PLRA states:
In no event shall a prisoner bring a civil action under this section 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 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The three-strikes rule does not distinguish between dismissals with prejudice, dismissals without prejudice, actions dismissed on the merits, or actions dismissed pursuant to the statute's screening provisions. O'Neal v. Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008). Thus, when an IFP motion or application is rejected pursuant to the screening provisions of 28 U.S.C. § 1915(e) and the action dismissed, the dismissal counts as a “strike.” Id. at 1155.
Here, the records of this Court and of the United States District Court for the Eastern District of Washington show Plaintiff previously filed at least eighteen prisoner civil rights actions while incarcerated. Of those actions, at least five were dismissed as frivolous and/or for failure to state a claim upon which relief may be granted. Thus, the following prior dismissals constitute “strikes” pursuant to section 1915(g):
1. Brooks v. State of Washington, et al., No. 3:03-cv-05285-RBL-KLS, Dkts. 5, 9, 10 (W.D. Wash judgment entered Oct. 6, 2003) (claim seeking damages based on parole eligibility decision dismissed for failure to state a claim).
2. Brooks v. Indeterminate Sentencing Review Board et al., No. 3:11-cv-05152-RJB, Dkts. 9, 12, 13 (W.D. Wash. judgment entered Apr. 11, 2011) (dismissing claims concerning parole eligibility decision and/or conditions of confinement as frivolous and for failure to state a claim).
3. Brooks v. Indeterminate Sentencing Review Board, et al., No. 3:11-cv-05247-RBL, Dkt. 6, 8, 9 (W.D. Wash. judgment entered May 11, 2011) (dismissing claims repetitive of those brought in Case No. 3:11-cv-05152-RJB as malicious and frivolous).
4. Brooks v. Endo, et al., No. 2:18-cv-00658-JCC, Dkts. 10, 14, 15 (W.D. Wash. judgment entered Jul. 9, 2018) (dismissing claim alleging ineffective assistance of appellate counsel as time-barred and for failure to state a claim).
5. Brooks v. Tenney, et al., No. 2:23-cv-00219-LK, Dkts. 8, 16, 17 (W.D. Wash. judgment entered Apr. 11, 2023) (dismissing claims concerning appellate counsel as duplicative, time-barred, and for failure to state a claim).
Because he has incurred at least three “strikes,” Plaintiff is barred from proceeding IFP unless he shows he was “under imminent danger of serious physical injury” at the time he filed his proposed complaint. See 28 U.S.C. § 1915(g). Plaintiff does not make such a showing. The allegations in the proposed complaint relate to habeas corpus proceedings occurring nearly two decades ago. See Dkts. 1, 4-1. These allegations do not demonstrate Plaintiff is under imminent danger of serious physical injury.
As Plaintiff has incurred at least three strikes and failed to show he is under immediate danger of serious physical injury, the undersigned recommends the IFP motion (Dkt. 4) be denied and that Plaintiff be required to pay the filing fee before he may proceed in this case.
III. Conclusion
For the stated reasons, the undersigned finds Plaintiff has incurred at least three “strikes” and is barred from proceeding without prepayment of fees under 28 U.S.C. § 1915(g). It is therefore recommended the IFP motion be denied and Plaintiff be directed to pay the $405.00 filing fee within 30 days of the adoption of this Report and Recommendation. If Plaintiff fails to pay the filing fee by the court-imposed deadline, it is further recommended this action be dismissed without prejudice.
Objections to this Report and Recommendation, if any, should be filed with the Clerk not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 16, 2024.
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court, having reviewed the Report and Recommendation of Magistrate Judge David W. Christel, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Plaintiff has incurred at least three “strikes” under 28 U.S.C. § 1915(g) and is thus ineligible to proceed in forma pauperis (“IFP”). As such, Plaintiff's IFP Motion (Dkt. 4) is DENIED and Plaintiff is directed to pay the $405.00 filing fee within 30 days of this Order. Plaintiff is advised that failure to pay the filing fee by that date will result in dismissal without prejudice.
(3) The Clerk is directed to send copies of this Order to Plaintiff and to the Hon. David W. Christel.
JOHN H. CHUN UNITED STATES DISTRICT JUDGE