1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HICKS, Case No.: 21-CV-1867 JLS (AGS)

CDCR # B-80852,

12

ORDER (1) DENYING MOTION TO

Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AS BARRED BY 28 U.S.C. § 1915(g) 14

AND (2) DISMISSING CIVIL

15 ACTION FOR FAILURE TO PAY PEYMAN SHAKIBA, et al., FILING FEE REQUIRED BY 28 16 U.S.C. § 1914(a) Defendants. 17 (ECF No. 2) 18

19 20

21 Plaintiff Michael Hicks, proceeding pro se and currently incarcerated at Richard J. 22 Donovan State Prison (“RJD”), has filed a civil action pursuant to 42 U.S.C. § 1983. See 23 ECF No. 1 (“Compl.”). Plaintiff has not paid the filing fee required to commence a civil 24 action; instead, he has filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 25 U.S.C. § 1915(a). See ECF No. 2 (“IFP Mot.”). 26 / / / 27 / / / 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 I. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended 8 section 1915 to preclude the privilege to proceed IFP 9 if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 10 appeal in a court of the United States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13

14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 18 “Cervantes”) (stating that, under the PLRA, “[p]risoners who have repeatedly brought 19 unsuccessful suits may entirely be barred from IFP status under the three strikes rule”). 20 The objective of the PLRA is to further “the congressional goal of reducing frivolous 21 prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 22 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 23 before and after the statute’s effective date.” Id. at 1311. 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted). These dismissals constitute 27 strikes “even if the district court styles such dismissal as a denial of the prisoner’s 28 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 1 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to determine 2 whether it counts as a strike, the style of the dismissal or the procedural posture is 3 immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells of 4 frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 5 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 6 “When . . . presented with multiple claims within a single action,” however, courts may 7 “assess a PLRA strike only when the case as a whole is dismissed for a qualifying reason 8 under the Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington 9 v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 10 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 11 from pursuing any other IFP action in federal court unless he can show he is facing 12 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 13 F.3d at 1051–52 (noting section 1915(g)’s exception for IFP complaints that “make[] a 14 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 15 the time of filing”). 16 II. Analysis 17 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and notes he 18 admits he is a “three-striker.” See Compl. at 6. However, Plaintiff fails to include any 19 “plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’ 20 at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, 21 Plaintiff alleges an RJD nurse, a doctor, and medical appeals coordinator violated his 22 Eighth Amendment rights to adequate medical care after he suffered a stroke in June 2021 23 and a “TIA stoke” on October 27, 2021.1 See Compl. at 2‒5. Specifically, Plaintiff 24

25 26 1 “A transient ischemic attack (TIA) is a temporary period of symptoms similar to those of a stroke. A TIA usually lasts only a few minutes and doesn’t cause permanent damage.” See https:// www. mayo 27 clinic.org/diseases-conditions/transient-ischemic-attack/symptoms-causes/syc-20355679 (last visited Dec. 7, 2021); Morris v. Blade, No. 21-CV-235 JLS (KSC), 2021 WL 2550092, at *5 n.2 (S.D. Cal. June 28 1 contends Nurse Unson failed to take his initial complaints of numbness and dizziness 2 seriously in June and refused Plaintiff’s request to see a doctor after his blood pressure 3 measured “within range.” Id. at 3.2 After Plaintiff suffered a stroke six days later and was 4 examined by Dr. Shakiba on June 21, 2021, following his discharge from Tri-City Hospital, 5 Plaintiff alleges Dr. Shakiba also “ignored his complaints” and told Plaintiff a follow-up 6 appointment with Tri-City would be “set up eventually” if he “just went with the program.” 7 Id. at 4. On October 27, 2021, Plaintiff claims he was transferred and admitted to Alvarado 8 Hospital with a TIA but has since been returned to RJD for follow up care. Id. Plaintiff 9 alleges he continually filed complaints with the Health Care Appeals Coordinator in June, 10 July, October, and November 2021, but he claims Stewart has either failed to respond, or 11 has lied, to “cover[] up medical care indifference.” Id. at 5. 12 Based on these facts, Plaintiff has not established he “faced ‘imminent danger of 13 serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 14 U.S.C. § 1915(g)). At most, Plaintiff’s allegations show he disagrees with the adequacy of 15 his health care at RJD over the six months preceding the filing of this action. However, he 16 acknowledges his symptoms were initially addressed by RJD nurses and doctors and that 17 he was transferred to two outside hospitals for treatment when his condition worsened. See 18 Compl. at 3–4. These allegations are both insufficient as a matter of law to state a claim 19 of subjective deliberate indifference as required by the Eighth Amendment, and insufficient 20 to show that he “faced ‘imminent danger of serious physical injury’ at the time of filing.” 21 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)); Toguchi v. Chung, 391 F.3d 22 1051, 1058 (9th Cir. 2004) (“[A] mere ‘difference of medical opinion . . . [is] insufficient, 23 as a matter of law, to establish deliberate indifference’” under the Eighth Amendment.) 24 25 Neuschmid, No. 18-01738 EJD (PR), 2021 WL 1056597, at *15 (N.D. Cal. March 18, 2021 (citations 26 omitted)).

27 2 In his Complaint, Plaintiff identified the nurse as Katherine Katchka, RN, but later filed a “Notice of Error” requesting to terminate Katchka as a party and to substitute Maricel Unson, RN, in Katchka’s place. 28 1 (citation omitted); see also Jones v. Drs., No. 3:21-CV-00531-DMS-MSB, 2021 WL 2 4310998, at *2 (S.D. Cal. Sept. 22, 2021) (finding prisoner’s complaints of chest pain, 3 followed by x-ray and referral for follow up care, insufficient to satisfy section 1915(g)’s 4 imminent danger exception); Balzarini v. Lewis, No.13-CV-820-LJO-BAM (PC), 2015 5 WL 2345464, at *8 (E.D. Cal. May 14, 2015) (finding plaintiff’s disagreement with prison 6 medical personnel about the course or adequacy of treatment he was receiving did not 7 establish imminent danger); Thomas v. Ellis, Case No. 12-cv-5563-W (PR), 2015 WL 8 859071, at *3 (N.D. Cal. Feb. 26, 2015) (finding imminent danger exception does not apply 9 where the prisoner is receiving medical treatment but disputes the quality of the treatment 10 he is receiving); Stephens v. Castro, No. 04-cv-6717-AWI-SMS(P), 2006 WL 1530265, at 11 *1 (E.D. Cal. May 31, 2006) (noting disagreement with prison personnel about course of 12 treatment does not establish an imminent danger of serious physical injury under section 13 1915(g).) 14 While Defendants typically carry the initial burden to produce evidence 15 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 16 some instances, the district court docket may be sufficient to show that a prior dismissal 17 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike,” id. at 18 1120. That is true here. 19 Based on the dockets of many court proceedings available on PACER,3 this Court 20 finds that Plaintiff Michael Hicks, identified as CDCR #B-80852, while incarcerated, has 21 had at least three prisoner civil actions or appeals dismissed on the grounds that they were 22 frivolous, malicious, or failed to state a claim upon which relief may be granted. See Hicks 23

24 25 3 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA- WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 26 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015). Furthermore, a court “may take notice of proceedings in other courts, both within and without 27 the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias, 508 F.3d at 1225 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States 28 1 || v. Berkson, et al., No. 1:02-cv-05905-A WI-SMS (E.D. Cal. June 19, 2003) (dismissing for 2 || failure to state a claim); Hicks v. Family Healthcare, et al., No. 2:08-cv-05978-UA-FMO 3 ||(C.D. Cal. Oct. 20, 2008) (dismissing action as legally and/or patently frivolous); Hicks v. 4 || Cate, et al., No. 2:08-cv-00511-SPK (E.D. Cal. Apr. 23, 2009) (dismissing for failure to 5 ||state a claim). Additionally, other courts have found that these cases and several others 6 || constitute three strikes for purposes of section 1915(g). See Hicks v. Hamkar, No. 2:13- 7 ||cv-1678-DAD-O at 4-6 (E.D. Cal. Mar. 25, 2015); Hicks v. Chisman, No. 3:13-cv-505-SI 8 2-3 (N.D. Cal. Apr. 4, 2013); Hicks v. Lizzaraga, et al., No. 3:15-cv-2408-H-JLB at 3 9 1/(S.D. Cal. Feb. 16, 2016). 10 Accordingly, because Plaintiff has, while incarcerated, accumulated more than the 11 three “strikes” permitted by section 1915(g) and fails to make any plausible allegation that 12 ||he faced imminent danger of serious physical injury at the time he filed this case, Plaintiff 13 |}is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 14 || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all 15 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 16 || the legal system from continuing to abuse it while enjoying IFP status’); see also Franklin 17 || v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP 1s 18 |/1itself a matter of privilege and not right.”’). 19 CONCLUSION 20 For the reasons set forth above, the Court DENIES Plaintiff's Motion to Proceed 21 || IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g), DISMISSES this civil action based on 22 || Plaintiff's failure to pay the civil filing fee required by 28 U.S.C. § 1914(a), CERTIFIES 23 || that an IFP appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. 24 1915(a)(3), and DIRECTS the Clerk of the Court to close the file. 25 IT IS SO ORDERED. 26 ||Dated: January 31, 2022 . tt f te 7 on. Janis L. Sammartino United States District Judge