1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SAMUEL ARCHULETA, Case No.: 3:21-cv-0508-GPC-JLB CDCR #AZ-7190, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS
14 AS BARRED BY 28 U.S.C. § 1915(g) U.S. DEPARTMENT OF TREASURY, [ECF No. 2] 15 Defendant. 16 AND
17 (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff, Samuel E. Archuleta, currently incarcerated at Kern Valley State Prison 22 (“KVSP”) located in Delano, California, has filed a civil action pursuant to 42 U.S.C. 23 § 1983 . (See Compl. at ECF No. 1.) Plaintiff has also filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) (See ECF No. 2). Plaintiff alleges that he has not received the stimulus 25 payments authorized by the “Cares Act.” (Compl. at 2.) 26 I. Motion to Proceed IFP 27 A. Standard of Review 28 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 1 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 2 an additional hurdle.” Id. 3 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 4 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 5 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 6 proceed IFP in cases where the prisoner: 7 . . . has, on 3 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 8 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 9 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 10 11 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 12 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 13 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 14 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 15 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 16 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 17 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 18 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 19 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 20 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 21 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 22 styles such dismissal as a denial of the prisoner’s application to file the action without 23 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 24 When courts “review a dismissal to determine whether it counts as a strike, the style of the 25 dismissal or the procedural posture is immaterial. Instead, the central question is whether 26 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 27 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 28 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 1 action,” however, courts may “assess a PLRA strike only when the case as a whole is 2 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 3 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 4 Cir. 2016)). 5 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 6 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 7 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 8 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 9 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 10 B. Discussion 11 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 12 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 13 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while 14 defendants typically carry the initial burden to produce evidence demonstrating a prisoner 15 is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district 16 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 17 criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here. 18 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 19 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 20 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 21 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 22 notice of proceedings in other courts, both within and without the federal judicial system, 23 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 24 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 25 Cir. 2002)). 26 Based on a review of its own docket and other court proceedings available on 27 PACER, the Court finds that Plaintiff Samuel E. Archuleta, identified as CDCR Inmate 28 #AZ-7190, while incarcerated, has had at least three prior civil actions dismissed on the 1 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 2 may be granted. 3 They are: 4 (1) Archuleta v. Del Campo, et al., Civil Case No. 2:18-cv-00872-WBS-KJN (E.D. 5 Cal. July 3, 2018) (Order adopting Report and Recommendation dismissing action 6 for failing to state a claim and for failing to file amended pleading1) (strike one); 7 (2) Archuleta v. Smith, et al., Civil Case No. 2:18-cv-00643-TLN-AC (E.D. Cal. 8 Aug. 29, 2018) (Order adopting Report and Recommendation dismissing action for 9 failing to state a claim and for failing to file amended pleading) (strike two); 10 (3) Archuleta v. Founlong, et al., Civil Case No. 1:18-cv-00693-LJB-GSA (E.D. 11 Cal.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SAMUEL ARCHULETA, Case No.: 3:21-cv-0508-GPC-JLB CDCR #AZ-7190, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS
14 AS BARRED BY 28 U.S.C. § 1915(g) U.S. DEPARTMENT OF TREASURY, [ECF No. 2] 15 Defendant. 16 AND
17 (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff, Samuel E. Archuleta, currently incarcerated at Kern Valley State Prison 22 (“KVSP”) located in Delano, California, has filed a civil action pursuant to 42 U.S.C. 23 § 1983 . (See Compl. at ECF No. 1.) Plaintiff has also filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) (See ECF No. 2). Plaintiff alleges that he has not received the stimulus 25 payments authorized by the “Cares Act.” (Compl. at 2.) 26 I. Motion to Proceed IFP 27 A. Standard of Review 28 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 1 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 2 an additional hurdle.” Id. 3 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 4 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 5 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 6 proceed IFP in cases where the prisoner: 7 . . . has, on 3 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 8 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 9 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 10 11 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 12 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 13 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 14 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 15 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 16 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 17 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 18 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 19 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 20 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 21 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 22 styles such dismissal as a denial of the prisoner’s application to file the action without 23 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 24 When courts “review a dismissal to determine whether it counts as a strike, the style of the 25 dismissal or the procedural posture is immaterial. Instead, the central question is whether 26 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 27 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 28 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 1 action,” however, courts may “assess a PLRA strike only when the case as a whole is 2 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 3 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 4 Cir. 2016)). 5 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 6 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 7 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 8 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 9 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 10 B. Discussion 11 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 12 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 13 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while 14 defendants typically carry the initial burden to produce evidence demonstrating a prisoner 15 is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district 16 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 17 criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here. 18 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 19 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 20 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 21 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 22 notice of proceedings in other courts, both within and without the federal judicial system, 23 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 24 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 25 Cir. 2002)). 26 Based on a review of its own docket and other court proceedings available on 27 PACER, the Court finds that Plaintiff Samuel E. Archuleta, identified as CDCR Inmate 28 #AZ-7190, while incarcerated, has had at least three prior civil actions dismissed on the 1 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 2 may be granted. 3 They are: 4 (1) Archuleta v. Del Campo, et al., Civil Case No. 2:18-cv-00872-WBS-KJN (E.D. 5 Cal. July 3, 2018) (Order adopting Report and Recommendation dismissing action 6 for failing to state a claim and for failing to file amended pleading1) (strike one); 7 (2) Archuleta v. Smith, et al., Civil Case No. 2:18-cv-00643-TLN-AC (E.D. Cal. 8 Aug. 29, 2018) (Order adopting Report and Recommendation dismissing action for 9 failing to state a claim and for failing to file amended pleading) (strike two); 10 (3) Archuleta v. Founlong, et al., Civil Case No. 1:18-cv-00693-LJB-GSA (E.D. 11 Cal. March 8, 2019) (Order adopting Report and Recommendation dismissing action 12 for failing to state a claim) (strike three). 13 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 14 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 15 imminent danger of serious physical injury at the time he filed his Complaint, he is not 16 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 17 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 18 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 19 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 20 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 21 itself a matter of privilege and not right.”). 22 II. Conclusion and Orders 23 For the reasons set forth above, the Court: 24 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 25 26 27 1 When a “court dismisses a complaint on the ground that it fails to state a claim , … the court grants leave to amend, and … the plaintiff then fails to file an amended complaint, the dismissal counts as a 28 1 1915¢g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 2 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); (3) 3 || CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. 4 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 5 IT IS SO ORDERED. 6 || Dated: March 24, 2021 2 sale Od 7 Hon. Gonzalo P. Curiel 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28