Cleveland v. Mandich

Background

Ivan V. Cleveland filed a civil-rights complaint under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. He alleged that he was incarcerated at the Correctional Training Facility and tested positive for COVID-19 in November 2020. On November 26, 2020, he experienced respiratory problems and was taken to the medical unit. Cleveland alleged that Nurse L. Mandich refused to treat him and sent him back to his housing unit. The next day, another nurse found him in distress, and he was taken to a hospital, where he was diagnosed with COVID pneumonia and stayed until December 7, 2020.

Cleveland alleged that Chief Nurse Executive Mahoi, Correctional Officer Jones, and Nurses Simon and Perry acted with deliberate indifference by conspiring to cover up Nurse Mandich’s conduct. He did not identify actions by the warden. Cleveland sought compensatory damages, punitive damages, and an investigation of Nurse Mandich.

Procedural history

The court previously told Cleveland that his initial request to proceed without paying was incomplete and required him to complete it within 28 days. After he did not respond, the court dismissed the action, then reopened it after his request. The court granted him two extensions, and he later completed the request.

Three-strikes rule

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner has had three or more prior federal actions or appeals dismissed as frivolous, malicious, or for failing to state a claim. An exception applies when the prisoner shows that he faced an imminent danger of serious physical injury when the complaint was filed.

The court identified three of Cleveland’s earlier federal cases as qualifying strikes: cases dismissed for failure to state a claim. The court concluded that each dismissal counted as a strike under Ninth Circuit precedent.

Imminent-danger exception

The court also concluded that Cleveland had not shown that the imminent-danger exception applied. His complaint was filed nearly six months after the alleged medical-treatment events. The court treated those events as past harm, not an ongoing danger, and noted that Cleveland did not allege that Nurse Mandich or another official was currently refusing to treat his medical needs. The court also stated that any future COVID-19 risks could not be attributed to Nurse Mandich because Cleveland had already contracted COVID-19 before the alleged refusal of treatment.

Order

The court ordered Cleveland to show cause in writing within 30 days why his request to proceed without paying should not be denied and why the action should not be dismissed under 28 U.S.C. § 1915(g). The court stated that Cleveland could avoid dismissal by paying the full filing fee. It further stated that failing to submit a timely and persuasive response or failing to pay the fee would result in dismissal without further notice.

The order did not decide the merits of Cleveland’s civil-rights claims. The court specifically noted that the complaint could still be dismissed on the merits even if Cleveland paid the filing fee.