Florence v. Allison

Background

David Florence, a California prisoner proceeding without an attorney, brought this civil-rights action under 42 U.S.C. § 1983. The court had allowed him to proceed without paying the filing fee. Defendants moved to revoke that permission under 28 U.S.C. § 1915(g), arguing that Florence had at least three prior dismissals that counted as “strikes.” In the alternative, they asked the court to dismiss the complaint for failing to comply with Federal Rule of Civil Procedure 8, which requires a short and plain statement of the claims. Florence opposed the motion.

The court also granted defendants’ request for judicial notice of docket sheets, filings, and rulings from Florence’s prior proceedings.

Four qualifying dismissals

Under § 1915(g), a prisoner with three or more prior federal cases or appeals dismissed as frivolous, malicious, or for failure to state a claim generally may not proceed without paying the filing fee, unless the prisoner was in imminent danger of serious physical injury when the complaint was filed. The court explained that defendants initially had to provide documentary evidence of three strikes, after which Florence had the burden of showing that the statute did not apply.

The court found four qualifying dismissals:

- In an earlier related proceeding, the district court dismissed both Florence’s original complaint and his amended complaint for failure to state a claim. The parties agreed that this dismissal counted as one strike. - The appeal from that proceeding was dismissed as frivolous rather than merely affirmed. The court therefore counted the appellate dismissal as a second strike. - In two other earlier related proceedings, the district courts dismissed the final amended complaint, or the complaint, for failure to state a claim. The court counted those dismissals as Florence’s third and fourth strikes.

The court rejected Florence’s argument that the two district-court dismissals could not count because appeals were pending. It explained that a qualifying dismissal counts as a strike even while an appeal is pending. Because four strikes were established, the court did not address defendants’ argument that two additional dismissals also qualified.

No imminent-danger exception

The court considered whether Florence qualified for the exception allowing a prisoner with three strikes to proceed without paying the fee. The relevant question was whether he faced an imminent danger of serious physical injury when he filed the complaint in April 2022, and the alleged danger had to be connected to the claims in the complaint.

Florence alleged inadequate care for chronic pain and neuropathy, including pain in his neck, lower back, and lower extremities. He also complained about pain medication, specialist referrals, and accommodations such as warmer clothing, blankets, a mattress, orthopedic shoes, and a cervical pillow. The court found that his records showed numerous appointments and treatments, including medication, imaging, physical therapy, heel wedges, orthopedic shoes, and consultations with a neurosurgeon. The court noted that the neurosurgeon offered surgery and a steroid injection, which Florence declined. It concluded that disagreement with the quality of care and continuing pain did not establish imminent danger.

The court also found that Florence’s allegations about a prior COVID-19 infection, possible exposure to infected inmates, a thyroid nodule, a stomach mass, depression, suicidal thoughts, and other medical conditions did not show imminent danger at the time he filed the case. The court noted that he had received medical attention for the nodule and mass, had been placed in a mental-health treatment program, and did not plausibly allege a current risk of serious physical injury when he filed the complaint.

Ruling

Judge Jacquelyn Corley granted defendants’ motion to revoke Florence’s permission to proceed without paying the filing fee. The court ordered Florence to pay the full $350 filing fee by April 3, 2023. The court stated that failing to pay would result in dismissal of the case without prejudice to bringing his claims in a new civil-rights case after paying the filing fee.

The court did not rule on defendants’ alternative request to dismiss for failure to provide a short and plain statement under Rule 8. It stated that it would address that argument if Florence paid the filing fee on time. The order disposed of docket number 18.