Blackgold v. Madison

• Court: District Court, S.D. California
• Decided: November 14, 2023
• Docket: 3:23-cv-01740
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SUTEN BLACKGOLD, aka Mitchell Case No. 23-CV-1740-JLS (DDL) Quentin Grady, 11 CDCR #AS-8775, ORDER: (1) DENYING MOTION TO 12 PROCEED IN FORMA PAUPERIS Plaintiff, AS BARRED BY 28 U.S.C. § 1915(g); 13 v. AND (2) DISMISSING CIVIL 14 ACTION WITHOUT PREJUDICE

FOR FAILURE TO PAY FILING 15 PATRICIA MADISON, et al., FEE REQUIRED BY 28 U.S.C. 16 Defendants. § 1914(a)

17 (ECF Nos. 1, 2) 18 19 Plaintiff Suten Blackgold (“Blackgold” or “Plaintiff”), also known as Mitchell 20 Quentin Grady, currently incarcerated at Kern Valley State Prison (“KVSP”), has filed a 21 civil rights Complaint (“Compl.,” ECF No. 1) pursuant to 42 U.S.C. § 1983. Plaintiff did 22 not prepay the full civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a 23 Motion to Proceed In Forma Pauperis (“IFP Mot.,” ECF No. 2). For the reasons set forth 24 below, the Court denies Plaintiff’s IFP Motion and directs him to pay the civil filing fee to 25 avoid dismissal. 26 I. IFP Motion 27 In order to further “the congressional goal of reducing frivolous prisoner litigation 28 in federal court,” the Prison Litigation Reform Act (“PLRA”) § 804(g), 28 U.S.C. 1 § 1915(g) (1996) provides that prisoners with three strikes or more cannot proceed in forma 2 pauperis (“IFP”). Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). A prisoner has 3 three strikes if 4 “on [three] or more prior occasions, while incarcerated or detained in any facility, [the prisoner] brought an action or appeal 5 in a court of the United States that was dismissed on the grounds 6 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . .” 7 8 28 U.S.C. § 1915(g). 9 When courts “review a dismissal to determine whether it counts as a strike, the style 10 of the dismissal or the procedural posture is immaterial. Instead, the central question is 11 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 12 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 13 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). Once a prisoner has accumulated three strikes, 14 he is prohibited by § 1915(g) from proceeding IFP in federal court unless he can show he 15 is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Andrews 16 v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). 17 Defendants typically carry the initial burden to produce evidence demonstrating a 18 prisoner is not entitled to proceed IFP, Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 19 2005), but “[i]n some instances, the district court docket records may be sufficient to show 20 that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore 21 counts as a strike,” id. at 1120. After reviewing its docket, the Court finds that Plaintiff, 22 also known as Mitchell Quentin Grady and identified with CDCR #AS-8775, has three 23 strikes that render him ineligible to proceed IFP. Fed. R. Evid. 201(b)(2); United States v. 24 Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court may take judicial notice of 25 its own records in other cases, as well as other courts’ records). They are: 26 (1) Grady v. Wyatt, Civil Case No. 3:20-cv-01631-AJB-BGS (S.D. Cal. Oct. 29, 2020 and Jan. 6, 2021) (Orders dismissing action for failing to state a claim 27

28 / / / 1 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and for failure to prosecute) (ECF Nos. 5–6) (strike one);1 2

3 (2) Grady v. Correa, Civil Case No. 3:20-cv-01997-AJB-JLB (S.D. Cal. Jan 12, 2021) (Orders dismissing action for failing to state a claim pursuant to 28 4 U.S.C. §§ 1915(e)(2) and 1915A(b)) (ECF No. 8) (strike two); 5 (3) Blackgold v. Madden, et al., Civil Case No. 3:22-cv-00915-MMA-WVG 6 (S.D. Cal. Dec. 5, 2022) (Order dismissing action as duplicative of 20cv1273- 7 MMA-WVG) (ECF No. 8) (strike three).2 8 Accordingly, because Blackgold has accumulated three “strikes” pursuant to 9 § 1915(g) while incarcerated, he cannot proceed IFP unless he meets the “imminent 10 danger” exception to the three strikes provision of the PLRA. To do so, his pleadings must 11 contain a “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ 12 at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 13 “Imminent danger” requires an allegation that a harm is “ready to take place,” or “hanging 14 threateningly over one’s head,” Cervantes, 493 F.3d at 1056 (internal quotation marks 15 omitted) (quoting Merriam-Webster’s Collegiate Dictionary 580 (10th ed. 1999)), and 16 “cannot be triggered solely by complaints of past injury or generalized fears of possible 17 future harm,” Hernandez v. Williams, No. 21cv347-MMA-KSC, 2021 WL 1317376, at *2 18 (S.D. Cal. Apr. 8, 2021) (citing Cervantes, 493 F.3d at 1053). 19 Blackgold’s Complaint and attached exhibits allege Defendants, who he alleges are 20 Imperial County District Attorneys, “stacked false felony convictions intentionally” in the 21 2010 San Diego superior court case no. SCD216913, and that Defendant Madison “tr[ied] 22 to viciously trick [him] into admitting to all these false felony convictions” in 2022. 23 Compl. at 2–3. Based on these allegations, the Court finds Blackgold has not met the 24 imminent danger exception to the three strikes rule because he is not facing a harm that is 25

26 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“A prisoner may not avoid incurring 27 strikes simply by declining to take advantage of [an] opportunit[y] to amend.”). 2 See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (a complaint that “merely repeats 28 1 || “ready to take place,” or “hanging threateningly over [his] head.” Cervantes, 493 F.3d at 2 ||1056 (internal quotation marks omitted) (quoting Merriam-Webster’s Collegiate 3 || Dictionary 580 (10th ed. 1999)); see also, e.g., Jensen v. Knowles, 621 F. Supp. 2d 921, 4 ||927 (E.D. Cal. 2008) (finding the plaintiff's allegation that defendants were withholding 5 religious books insufficient to satisfy the imminent danger exception of § 1915(g)). 6 Conclusion and Orders 7 For the reasons set forth above, the Court: 8 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 9 1915(g); 10 (2) DISMISSES this civil action sua sponte without prejudice for failing to prepay 11 $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 12 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 13 }}28 U.S.C. § 1915(a)(3); and 14 (6) DIRECTS the Clerk of the Court to close the file. 15 IT IS SO ORDERED. 16 || Dated: November 13, 2023 tt f Le 17 on. Janis L. Sammartino 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 4 ee