Freeman v. Foss

Background

Travon Leon Freeman, an incarcerated plaintiff proceeding without a lawyer, filed this civil-rights action under 42 U.S.C. § 1983. He alleged that officials at Salinas Valley State Prison failed to protect him from a serious attack by other inmates on November 29, 2018. The court later found that his second amended complaint stated a legally cognizable Eighth Amendment failure-to-protect claim against Paicio, Sandquist, Banger, Cervantes, Salgado, and Foss.

The defendants moved to revoke Freeman’s in forma pauperis status, which is permission for a prisoner who cannot pay the filing fee upfront to proceed without paying it immediately, and to dismiss the second amended complaint. Freeman opposed the motion.

Three-strikes finding

The Prison Litigation Reform Act generally bars a prisoner from proceeding in forma pauperis if the prisoner previously brought three or more federal actions that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was under imminent danger of serious physical injury when the action was filed.

The court reviewed three earlier actions identified in a prior related proceeding: Freeman v. Adams, Freeman v. Hynse, and Freeman v. Julious. It agreed that each dismissal counted as a strike under 28 U.S.C. § 1915(g). The court also concluded that Freeman’s initial complaint did not allege that he faced imminent danger when he filed this action. The complaint concerned an attack at a prison where Freeman had previously been housed, six months before filing, and did not allege an ongoing danger at the time of filing.

The court explained that the three-strikes rule concerns permission to proceed without paying the filing fee, not whether Freeman could bring claims about past constitutional violations. It declined to decide whether imminent danger should be measured when the original complaint or the later operative complaint was filed because Freeman did not allege imminent danger when he filed the original complaint.

Disposition of the fee issue and complaint

The court GRANTED the defendants’ motion to revoke Freeman’s in forma pauperis status and DENIED their request to dismiss the second amended complaint. Freeman could continue the action only by paying the $400 filing and administrative fee in full within 28 days of the order. The court stated that if the fee was not paid by the deadline, it would dismiss the action without prejudice to refiling upon payment of the full fee.

Defendant Paicio

The California Department of Corrections and Rehabilitation reported that it could not locate an employee named Paicio. The court had ordered Freeman to provide a current address for service or explain why he could not provide the information. Freeman did neither by the deadline. The court therefore DISMISSED defendant Paicio from the action without prejudice under Federal Rule of Civil Procedure 4(m), which addresses failure to serve a defendant within the required period.

Final ruling

The order revoked Freeman’s in forma pauperis status, denied dismissal of the second amended complaint, required payment of the filing fee, and dismissed Paicio without prejudice. The order did not decide the underlying failure-to-protect claims.