Facts
- Rosanna Coleman had custody of her two minor grandchildren when her daughter initiated a Protection From Abuse (PFA) order against her in Pennsylvania [lines="14-35"].
- The Pittsburgh Municipal Court issued the PFA Order, which mandated Coleman to refrain from contact with the children and allowed deputies to execute the order [lines="34-35"], [lines="39-49"].
- Franklin County Sheriff's deputies Sibbalds and Pierce served the PFA Order on December 8, 2020, and removed the children, taking them to Franklin County Children Services (FCCS) [lines="52-76"].
- Following the removal, an FCCS caseworker, Dickerson, filed a complaint alleging abuse by Coleman, resulting in temporary custody of the children being granted to FCCS [lines="82-92"].
- Coleman eventually had visitation with one child after a court granted her temporary custody on February 25, 2021, while the other child remained in kinship care [lines="150-156"].
Issues
- Whether the removal of the children from Coleman’s home constituted an unreasonable seizure under the Fourth Amendment [lines="273"].
- Whether Dickerson and Cobb retaliated against Coleman by preventing her from contacting her children, thus violating her First Amendment rights [lines="275"].
Holdings
- The court found that the removal of the children was lawful as it was executed pursuant to a valid court order and did not violate the Fourth Amendment [lines="288-364"].
- The court determined that Dickerson was entitled to absolute immunity in filing the court complaint and that Cobb did not retaliate against Coleman, leading to summary judgment for both [lines="382-440"].
OPINION
Case Information
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GREGORY SCOTT VAN HUSIEN, Case No. 2:24-cv-00055-WBS-JDP (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS v. THAT PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA PAUPERIS BE CHUCK ROSENBURG, et al. , DENIED
Defendants. ECF Nos. 8 & 12 OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff has filed a first amended complaint, ECF No. 7, and two requests to proceed , ECF Nos. 8 & 12. However, after a review of plaintiff’s filings in this district, it appears that plaintiff is a “Three-Striker” within the meaning of Title 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act of 1995 provides that a prisoner may not bring a civil action or appeal a judgment in a civil action or proceeding under 28 U.S.C. § 1915 (i.e., may not proceed ) “if the prisoner has, on three 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). Any dismissal for failure to state a claim, whether with or without prejudice, counts as a strike. Lomax v. Ortiz-Marquez , 140 S. Ct. 1721, 1724-25 (2020).
The court takes judicial notice of the following cases constituting strikes: Van Huisen v. DeSantis , No. 2:23-cv-01758-WBS-KJN (E.D. Cal. Jan. 2, 2024) (dismissed for failure to state a claim); Van Huisen v. Clinton Administration , No. 2:23-cv-01596-DJC-KJN (E.D. Cal. Jan. 16, 2024) (dismissed for failure to state a claim); and Van Husisen v. Joseph R. Biden , No. 2:23-cv- 00944-DJC-EFB (E.D. Cal. Jan. 16, 2024) (dismissed for failure to state a claim). The court also takes judicial notice of Van Husien v. Chief of Staff , No. 2:23-cv-02815-DAD-JDP (E.D. Cal. April 3, 2024), where the court denied plaintiff’s motion to proceed because he is a Three Striker.
Despite being a “Three-Striker,” a plaintiff may be afforded an opportunity to proceed under § 1915(g) if he alleges that he was in imminent danger at the time he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes , 493 F.3d 1047, 1052-53 (9th Cir. 2007). The plain language of the imminent danger clause in § 1915(g) indicates that imminent danger is to be assessed at the time of filing of the original complaint (“In no event shall a prisoner bring a civil action . . .” (emphasis added)). See Andrews v. Cervantes , 493 F.3d 1047, 1053 (9th Cir. 2007) (“ Andrews II ”); Bradford v. Usher , Case No. 1:17-cv-01128-DAD-SAB, 2019 WL 4316899, *4 (E.D. Cal. Sept. 12, 2019) (“[I]mminent danger for purposes of § 1915(g) is to be measured at the time of the commencement of the action.”). Under this approach, the conditions that existed at some earlier or later time are not relevant. See Andrews II , 493 F.3d at 1053 & n.5 (post-filing transfer of prisoner out of prison at which danger allegedly existed may have mooted request for injunctive relief against alleged danger but did not affect § 1915(g) analysis).
Plaintiff has not alleged that he was in imminent danger at the time of filing. ECF No. 1. The complaint purports to bring claims against Chuck Rosenburg, the former acting director of the Drug Enforcement Agency, and several John Doe DEA employees. ECF No. 1 at 2. The claims plaintiff attempts to allege, however, are unclear and difficult to decipher. Indeed, sentences in the complaint appear at times to be a series of unconnected words. Id. at 6 (“Nargoterrorism, mania, considence game, and conspired with an immoral contract from Virginia.”). These allegations, taken as true, do not establish that plaintiff was in imminent danger of physical harm at the time of filing.
Accordingly, it is RECOMMENDED that plaintiff’s applications to proceed in forma pauperis , ECF Nos. 8 & 12, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any order adopting these recommendations.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan , 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED .
Dated : May 2, 2024
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE that plaintiff was in imminent danger at the time of that filing.
[1] Plaintiff has filed two complaints; the initial complaint was filed January 5, 2024, ECF No. 1, and the first amended complaint was filed January 16, 2024, ECF No. 7. The first amended complaint is the operative complaint, but the court will review the initial complaint to assess whether plaintiff was in imminent danger at the time of filing.
[2] While courts look to the initial complaint to assess imminent danger, the undersigned 28 additionally reviewed the amended complaint and finds that it too does not contain any notion