Asberry v. Florez

Background

Tony Asberry, a prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983 against Nurse Florez and Correctional Officers Alba, Villanueva, and Carrillo. He alleged that officials failed to protect him during a May 20, 2019 attack by two other prisoners, failed to properly treat injuries from that attack, retaliated against him because he filed grievances, and violated state-law duties. He sought compensatory and punitive damages.

The court had previously allowed Asberry to proceed without paying the filing fee and had found that his complaint stated potentially valid claims involving retaliation and deliberate indifference to his safety and medical needs. Defendant Villanueva later moved to revoke that fee status under 28 U.S.C. § 1915(g), commonly called the “three-strikes rule,” and to dismiss the action without prejudice. Florez, Alba, and Carrillo moved to join Villanueva’s motion. Asberry did not oppose the motion.

Three-strikes ruling

Section 1915(g) generally prevents a prisoner from proceeding without prepaying the filing fee if the prisoner previously brought at least three actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failure to state a legally sufficient claim. A prisoner with three qualifying dismissals may still proceed without prepaying the fee by plausibly showing an imminent danger of serious physical injury when the complaint was filed.

The court reviewed four earlier cases identified by defendants:

- In Case No. 3:13-cv-00055-MMA-DHB, the court had dismissed the complaint with leave to amend, and Asberry then voluntarily dismissed the case. The court held that this voluntary dismissal did not count as a strike. - In Case No. 3:13-cv-3006-CAB-RBB, the complaint had been dismissed as frivolous and for failure to state a claim, and Asberry did not file an amended complaint. The court held that this dismissal counted as the first strike. - In Case No. 3:13-cv-02573-WQH-JLB, the court dismissed the action after Asberry failed to file a required further amended complaint, and the dismissal was based on failure to state a claim. The court held that this counted as the second strike. - In Case No. 3:19-cv-00153-DMS-RBB, the court denied permission to proceed without prepaying the filing fee based on three prior strikes and dismissed the complaint as frivolous. The court held that this counted as the third strike.

The court therefore found that three of the four earlier dismissals qualified as strikes under Section 1915(g). It also found that Asberry’s complaint did not plausibly allege an imminent danger of serious physical injury when he filed this action on June 16, 2020. The complaint’s allegations concerned an incident from nearly a year earlier and did not allege that he faced such a danger at the time of filing.

Disposition

The court granted Florez’s, Alba’s, and Carrillo’s motions to join Villanueva’s motion. It granted defendants’ request for judicial notice of the documents from the earlier cases. It granted defendants’ motion to revoke Asberry’s permission to proceed without prepaying the filing fee and to dismiss the action without prejudice.

The order stated that the case was dismissed without prejudice to Asberry’s filing a motion to reopen within 28 days, accompanied by the full $402 filing fee. If he did not do so within that period, he could pursue his claims by filing a new civil-rights case and paying the full filing fee. The court terminated the remaining pending motions as moot and closed the case. Judge Yvonne Gonzalez Rogers signed the order.