Opinion
No. 2:18-cv-01796 KJM DB P
06-11-2020
JIMMIE STEPHEN, Plaintiff, v. E. MONTEJO, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis ("IFP") with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Before the court is defendant's motion to revoke plaintiff's IFP status. For the reasons set forth below, this court will recommend defendant's motion be granted.
BACKGROUND
Plaintiff filed his original complaint here on June 22, 2018. (ECF No. 1.) On screening, this court found plaintiff failed to state any cognizable claims for relief and gave plaintiff leave to file an amended complaint. (ECF No. 6.) In considering plaintiff's motion to proceed IFP, this court found plaintiff had accrued over three strikes under 28 U.S.C. § 1915(g), preventing him from proceeding IFP unless he could show he was in imminent danger of serious physical harm. //// This court then found that plaintiff's allegations were, liberally construed, minimally sufficient to meet the imminent danger standard. (Id. at 2-3.)
Since then, plaintiff has filed three amended complaints. This case is proceeding on plaintiff's claims against defendant Montejo in the third amended complaint regarding Montejo's treatment of plaintiff's chronic kidney disease ("CKD") and prostate. (ECF Nos. 61, 74.)
On April 29, 2020, defendant filed the present motion to revoke plaintiff's IFP status and a request for judicial notice. (ECF Nos. 77, 78.) Plaintiff filed an opposition (ECF No. 81) and defendant filed a reply (ECF No. 84).
MOTION TO REVOKE IFP STATUS
I. Legal Standards
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,
[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.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 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). 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. ////
Imminent danger of serious physical injury must be a real, present threat, not merely speculative or hypothetical. Andrews, 493 F.3d at 1057 n. 11. To meet his burden under § 1915(g), an inmate must provide "specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury." 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).
Courts need "not make an overly detailed inquiry into whether the allegations qualify for the exception." Andrews, 493 F.3d at 1055; see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) ("[Section] 1915(g) is not a vehicle for determining the merits of a claim.... [T]o fine-tune what is 'serious enough' to qualify for the exception ... would result in a complicated set of rules about what conditions are serious enough, all for a simple statutory provision governing when a prisoner must pay the filing fee for his claim. This is not required...."). Rather, the court should liberally construe the pro se plaintiff's allegations to determine whether he has plausibly alleged imminent danger and apply the exception in a manner that makes "practical sense." Andrews, 493 F.3d at 1055.
II. Analysis
This court previously found that plaintiff suffered more than three strikes under 28 U.S.C. § 1915(g) before he initiated this action. (ECF No. 6 at 2-3.) That finding has not been challenged. The only issue is whether this court's previous finding that plaintiff adequately demonstrated imminent danger of serious physical injury should be revisited.
Defendant argues that plaintiff "failed to plead facts sufficient to support a plausible inference that the treatment Dr. Montejo provided (or failed to provide) for CKD posed a substantially serious risk of harm that was imminent when he filed suit." (ECF No. 77-1 at 9.) Defendant asks this court to consider the fact that doctors recently determined that plaintiff does not suffer from CKD and various medical facts regarding plaintiff's kidney health. ////
Defendant's motion raises two issues regarding the proper application of the imminent danger exception. The first issue is whether imminent danger should be evaluated at the time plaintiff filed this action or whether it should be evaluated as of the time the operative complaint was filed. The second issue is whether this court may consider evidence outside the allegations of the relevant complaint. For the reasons set forth below, this court finds it must consider whether plaintiff has established he was in imminent danger at the time he filed this action in June 2018 and that it may consider a limited amount of additional evidence in making this determination.
A. Relevant Time Period for Purposes of the Imminent Danger Exception
The exception to § 1915(g) permitting a prisoner to proceed in forma pauperis despite having three or more strikes against him "applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews, 493 F.3d at 1055. In so holding, the Ninth Circuit relied upon the following analysis of the applicable statute:
The PLRA provides that a prisoner with three strikes cannot use IFP status to "bring a civil action...unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g) (emphases added). The exception's use of the present tense, combined with its concern only with the initial act of "bring[ing]" the lawsuit, indicates to us that the exception applies if the danger existed at the time the prisoner filed the complaint. See United States v. Jackson, 480 F.3d 1014, 1018-19 (9th Cir. 2007) (noting the use of tenses in statutes generally is significant and "one would not refer in the present tense to something that had already happened" (citing The Dictionary Act, 1 U.S.C. § 1)). In other words, the availability of the exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time. Andrews's removal from the California prison system after filing the complaint is therefore irrelevant to our § 1915(g) analysis.Id. at 1052-53.
Judges in this district have taken different approaches to evaluating imminent danger. Some have looked to the time of the operative complaint. Others have looked to the time of the original filing. Compare Ramey v. Franco, No. 2:16-cv-2107 JAM CKD, 2018 WL 784294, at *6 (E.D. Cal. Feb. 8, 2018) (court looks to allegations of amended complaint to determine whether plaintiff plausibly alleged imminent danger at that time), withdrawn on other grounds, No. 2:16-cv-2107 JAM CKD (E.D. Cal. Mar. 19, 2018); Diaz v. Sherman, No. 1:13-cv-01627-DAD-MJS, 2016 WL 8673044, at *2 (E.D. Cal. Aug. 5, 2016) (same); and Winfield v. Schwarzenegger, No. 2:09-cv-0636-JAM-KJN, 2010 WL 3397397, at *1 (E.D. Cal. Aug. 27, 2010), rep. and reco. adopted, 2011 WL 302862 (E.D. Cal. Jan. 25, 2011) with Ellington v. Alameida, No. 2:04-cv-0666-RSL-JLW, 2010 WL 2650632, at *6 (E.D. Cal. July 1, 2010) ("[T]his Court properly considered whether plaintiff was under imminent danger of serious physical injury at the time he brought this action."), rep. and reco. adopted, 2010 WL 11526778 (E.D. Cal. Aug. 26, 2010), aff'd on other grounds, 479 F. App'x 762 (9th Cir. 2012); Andrews v. Cervantes, No. CIV S-03-1218 WBS EFB P, 2008 WL 1970345, *1 (E.D. Cal. May 5, 2008) ("The court acknowledges that this is an amended complaint filed after plaintiff was removed from the California Department of Corrections and Rehabilitations. However...§ 1915(g) addresses the time a prisoner brings an action. Accordingly, despite the passage of time and plaintiff's transfer away from the California prison system, the court finds that at the time he brought this action, he was in 'imminent danger of serious physical harm.'"), rep. and reco. adopted, 2008 WL 2705405 (E.D. Cal. July 9, 2008).
Recently, Judge Drozd, who had held in Diaz that imminent danger should be measured at the time of the operative complaint, reversed course. He held that his ruling in Diaz was in error. The following reflects Judge Drozd's reasoning in reaching that conclusion.
[T]he court begins with the text of 28 U.S.C. § 1915(g). That language is instructive: it states that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action under this proceeding" if the prisoner has three or more strikes against him, unless he can demonstrate imminent danger. 28 U.S.C. § 1915(g) (emphasis added). The bringing of an action is not synonymous with the filing of a complaint. In common legal parlance, the term "action" refers not merely to the operative pleadings, but instead encompasses "all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court." Black's Law Dictionary 28 (6th ed. 1990); see also U.C.C. § 1-201(b)(1) (" 'Action', in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined."). Complaints, by contrast, are merely one form of pleading that may be filed within an action, and multiple amended complaints may be filed within a single action at the discretion of the court. See Fed. R. Civ. P. 7(a)(1), 15. Thus, § 1915(g) by its terms requires a showing of imminent danger upon the commencement of an action, not the filing of a complaint.
Other provisions within § 1915 reflect this distinction. The text of that statute refers both to "complaints" and "actions" in various portions of the text, and this court must ascribe different meanings to those words if possible under a fair reading of the statute. See Lindsey v. Tacoma- Pierce Cty. Health Dep't, 195 F.3d 1065, 1074 (9th Cir. 1999) (calling it a "basic principle of statutory construction that different words in the same statute must be given different meanings"). Had Congress sought to require a plaintiff to demonstrate imminent danger each time an amended complaint was filed, they could easily have used language to that effect. As currently drafted, however, § 1915(g) provides that imminent danger is to be measured only twice: once at the commencement of an action with the district court, and again upon the filing of a notice of appeal. Because imminent danger is tied to the action rather than the operative complaint, the court finds that a plaintiff is under no obligation to demonstrate that he is in imminent danger each time he seeks to amend. Reading such a requirement into the statute would be contrary to its text.Bradford v. Usher, 1:17-cv-1128 DAD SAB, 2019 WL 4316899, at *2-3 (E.D. Cal. Sept. 12, 2019). Judge Drozd concluded by noting that "this point of law remains unsettled, and that courts across the country appear to have at least arguably reached somewhat different conclusions on the issue." Id. at 4 (collecting cases). ////
Further supporting this reading of the statute is Ninth Circuit caselaw holding that under the plain language of § 1915(g), a prisoner must make the imminent danger showing at "two different times": the bringing of an action and the appeal of a judgment. Williams v. Paramo, 775 F.3d 1182, 1188 (9th Cir. 2015). This language strongly suggests that for as long as an action proceeds at the district court level, a plaintiff seeking to proceed in forma pauperis by demonstrating imminent danger need only make the requisite showing once, after which he must make it again should the case proceed on appeal.
Bolstering this reading is the underlying purpose of the PLRA, which was "designed to bring [prisoner] litigation under control." Woodford v. Ngo, 548 U.S. 81, 84 (2006); see also Williams, 775 F.3d at 1190 (noting that an "overly detailed" inquiry into to whether a prisoner is in imminent danger would only have the effect of "spawning additional litigation and creating mini-trials over whether a prisoner has shown an imminent danger"). In this court's experience, because prisoners almost always proceed without counsel, they often must file amended complaints before satisfying the various pleading requirements incumbent upon them as litigants in federal court. Requiring judges to resolve issues of whether the imminent danger exception has been established as applicable at each iteration of the complaint would serve only to expend limited judicial resources, directly contrary to the PLRA's intent.
Based on the reasoning set forth in Bradford, this court finds it appropriate to look to plaintiff's circumstances at the time he filed his original complaint.
B. Consideration of Evidence Beyond the Complaint
Defendant cites just one case for the proposition that this court may consider information beyond the scope of the complaint. In that case, Denton v. Hernandez, the Court examined the PLRA's requirement that cases brought by prisoners in forma pauperis be screened in part to determine whether the action was so frivolous that it should not be permitted to proceed. The Court in Denton held that a court may "pierce the veil of the complaint" to determine whether it is frivolous. 504 U.S. 25, 32 (1992). It stated further, "[w]e . . . reject the motion that a court must accept as 'having an arguable basis in fact' . . . . all allegations that cannot be rebutted by judicially noticeable facts." Id. The Court in Denton did not address application of this principle to consideration of the imminent danger exception.
While it does not appear that the Ninth Circuit has addressed the issue, a number of other federal courts have. Last year, the Second Circuit considered it. After reviewing the case law, the court found that "[a]ll of our sister circuits to have confronted this question have held that district courts - upon challenge by a defendant - may conduct a narrow evidentiary inquiry into the prisoner-litigant's fear of imminent danger." Shepherd v. Annucci, 921 F.3d 89, 94 (2d Cir. 2019) (collecting cases). This court's research has similarly uncovered no federal court decisions limiting the imminent danger analysis, when challenged by the defendant, to the allegations of the complaint. District courts in the Ninth Circuit have permitted limited, evidentiary inquiry into serious allegations of imminent danger. See Diaz v. Hurley, No. 2:15-cv-2083 GEB KJN P, 2017 WL 4876032, at *3 (E.D. Cal. Oct. 30, 2017) ("Where serious allegations of imminent danger are disputed, district courts may hold a hearing or rely on affidavits, depositions, or other records to resolve the issue." (Citing Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 2010)), rep. and reco. adopted, 2018 WL 558667 (E.D. Cal. Jan. 24, 2018); Tierney v. Hamada, No. 1:12-CV-0117 SOM, 2012 WL 4502935, at *3 (D. Haw. Sept. 27, 2012) (Court conducted evidentiary hearing that required it to determine whether the plaintiff "sufficiently and plausibly alleging imminent danger.").
The Second Circuit in Shepherd recognized the Ninth Circuit's warning in Andrews that inquiry into imminent danger should not be "overly detailed." The Second Circuit did not find its holding contrary to that admonition.
Nothing in Andrews purports to say, however, that defendants cannot mount a limited factual challenge to a district court's provisional determination that a prisoner satisfies the imminent-danger exception, or that district courts' hands are tied in resolving this conflict. Andrews only cautions - and we agree - that any such inquiry should be narrow.Shepherd, 921 F.3d at 95-96. This court finds it may consider evidence beyond the four corners of the complaint to determine whether plaintiff was in imminent danger of serious physical injury when he filed this action.
Of course, a narrow evidentiary challenge to a provisional determination that a prisoner is in imminent danger of serious physical injury should not metastasize into "a full-scale merits review." Taylor, 623 F.3d at 486. Because any such inquiry concerns only a "threshold procedural question," Chavis, 618 F.3d at 169, resolving a challenge to the imminent-danger exception "does no more than permit the complainant to proceed with his or her cause of action [with or] without pre-payment of the filing fee in full," Gibbs, 116 F.3d at 87 n.7
C. Was Plaintiff in Imminent Danger for Purposes of § 1915(g)?
In his original complaint, filed here on June 22, 2018, plaintiff alleged that he was diagnosed with CKD in 2017. He further alleged that defendant Montejo refused to conduct testing to categorize plaintiff's CKD. Plaintiff contended that until his CKD type was identified, treatment could not begin. Plaintiff alleged that he could require hemodialysis to avoid renal failure.
After reviewing plaintiff's allegations, this court found plaintiff met the imminent danger exception:
Whether or not plaintiff has adequately alleged "imminent danger" is a close question. Denial of medical treatment "may result in a pending imminent danger of serious physical injury within the meaning of 28 U.S.C. § 1915(g)." Freeman v. Collins, No. 2:08-cv-0071, 2011 WL 1397594 (S.D. Ohio Apr. 12, 2011) (citing numerous courts of appeals' cases), op. adopted, 2011 WL 6339687 (S.D. Ohio Dec. 19, 2011). Because this court liberally construes plaintiff's complaint of problems with urination, the need for hemodialysis, and the potentially dire consequences if plaintiff does not receive
dialysis, this court finds plaintiff has established an "imminent danger of serious physical injury" and qualifies for the exception to § 1915(g).(Sept. 20, 2018 Screening Order (ECF No. 6 at 3-4).)
In his motion to revoke plaintiff's IFP status, defendant makes a number of arguments. Defendant also asks the court to judicially notice both plaintiff's litigation history and medical information regarding the diagnosis and treatment of both CKD and prostate cancer. This court may consider plaintiff's litigation history because it is a matter of public record that is not subject to dispute. Fed. R. Evid. § 201. However, this court finds it unnecessary to consider the medical evidence defendant seeks this court to judicially notice. Rather, based on plaintiff's later assertions regarding treatment for CKD and based on the vague and speculative nature of plaintiff's original claims of potential injury, this court finds its initial determination that plaintiff met the imminent danger standard to have been in error.
Courts have stressed that allegations of imminent danger must be supported by specific, credible allegations of harm, McNeil v. United States, No. C 05-1975-JCC, 2006 WL 581081 (W.D. Wash. Mar. 8, 2006), by allegations showing that the danger faced is "real, proximate, and/or ongoing," Andrews, 493 F.3d at 1056, and by allegations that are not speculative, Brown v. Newsom, No. 2:19-cv-0326 KJN P, 2019 WL 2387762, at *1 (E.D. Cal. June 6, 2019). Plaintiff must have shown that he faced a "genuine emergency" and "time [was] pressing." Lewis, 279 F.3d at 531.
Simply taken from the face of the original complaint, plaintiff's allegations fail to meet that standard. Plaintiff alleged only that Montejo failed to type his CKD and that he might, depending on the type of CKD, require dialysis. Plaintiff's assertion of the need for dialysis was completely speculative. Nor did plaintiff show he was facing any other sort of emergency because of the CKD diagnosis. Plaintiff alleged he had been diagnosed with CKD in 2017. He filed this action a year later. Plaintiff did not explain why his medical situation required immediate attention in June 2018.
Nothing plaintiff has alleged in his subsequent filings cures this problem with the initial complaint. In fact, plaintiff has backed away from his assertion that he may require dialysis and now contends only that Montejo did not treat him correctly by prescribing vitamins, a low protein diet, and lifestyle changes. (Sec. Am. Compl. (ECF No. 15 at 4).) In addition, to the extent plaintiff alleges that he has a low glomerular filtration rate ("GFR") indicating severe kidney problems, that condition was not present in June 2018. Attached to plaintiff's third amended complaint is a doctor's 2019 report noting that plaintiff's renal functions were "stable" and noting that his GFR had stayed consistently above the level that would be cause for concern. (ECF No. 61 at 11-12.)
Finally, plaintiff's allegations of prostate problems cannot serve to establish imminent danger. Plaintiff alleges in his third amended complaint that defendant Montejo failed to adequately treat his prostate in October 2018 by ordering further testing after his examination showed plaintiff had an enlarged prostate and a high prostate-specific antigen ("PSA"). (ECF No. 61 at 3.) Because this alleged conduct did not occur until after plaintiff filed this action in June 2018, it cannot form the basis for any assertion that plaintiff was in imminent danger of serious physical harm when he filed here.
Even if this court could consider plaintiff's complaints that Montejo failed to properly treat his prostate, those complaints would not meet the imminent danger standard. Plaintiff did not raise any issue regarding his prostate until his second amended complaint, filed January 28, 2019. (ECF No. 15.) And, he only stated there that contamination of prison drinking water had contributed to his prostate disease. Plaintiff did not raise the claim regarding his prostate care by Montejo until he filed his third amended complaint in February 2020, long after he alleges Montejo failed to treat him in October 2018. (ECF No. 61.) Nothing about that allegation of past conduct demonstrated plaintiff was in imminent danger of serious physical injury in February 2020.
The PLRA specifies that "[i]n no event shall a prisoner bring a civil action" when he has on three or more prior occasions brought an action or appeal that was dismissed as frivolous, or malicious, or for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Plaintiff has unquestionably incurred far more than three strikes. (See ECF No. 78.) He should only be permitted to proceed IFP here if he meets the imminent danger exception. For the reasons set forth above, this court finds he has not done so. Defendant's motion to revoke plaintiff's IFP status should be granted and plaintiff should be ordered to pay the filing fee if he wishes to proceed.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendant's motion to revoke plaintiff's in forma pauperis status (ECF No. 77) be granted;
2. Plaintiff be ordered to pay the filing fee if he wishes to proceed with this action; and
2. Defendant's request for judicial notice (ECF No. 78) be granted as to plaintiff's litigation history and denied in all other respects.
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 thirty days after being served with these findings and recommendations, either party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may result in waiver of the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: June 11, 2020
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB:9
DLB1/prisoner-civil rights/step1796.mtn revoke fr