1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOSHUA DAVIS BLAND, Case No.: 3:20-CV-0964 JLS (LL) CDCR #P-29302, 11 ORDER: (1) DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13 AND (2) DISMISSING CIVIL
14 ACTION WITHOUT PREJUDICE PEOPLE OF THE STATE OF FOR FAILURE TO PAY FILING 15 CALIFORNIA; SUPERIOR COURT OF FEE REQUIRED BY 28 U.S.C. 16 CALIFORNIA; WILLIAM WOLFE; § 1914(a) BRUCE SILVA; SAN DIEGO COUNTY 17 DISTRICT ATTORNEY; ESCONDIDO 18 POLICE OFFICER, 19 Defendants. 20 21 Plaintiff Joshua Davis Bland, currently incarcerated at the California State Prison, 22 Corcoran, located in Corcoran, California, has filed a civil rights Complaint pursuant to 42 23 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff also filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) (See ECF No. 2). 25 I. Motion to Proceed IFP 26 A. Legal Standard 27 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 28 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 1 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 2 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 3 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 4 preclude the privilege to proceed IFP in cases where the prisoner: 5 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the 6 United States that was dismissed on the grounds that it is 7 frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of 8 serious physical injury. 9 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 10 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 11 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 12 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 13 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 14 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 15 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 16 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 17 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 18 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 19 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 20 styles such dismissal as a denial of the prisoner’s application to file the action without 21 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 22 When courts “review a dismissal to determine whether it counts as a strike, the style of the 23 dismissal or the procedural posture is immaterial. Instead, the central question is whether 24 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 25 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 26 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 27 action,” however, courts may “assess a PLRA strike only when the case as a whole is 28 1 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 2 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 3 Cir. 2016)). 4 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 5 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 6 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 7 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 8 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 9 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 18 here. 19 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 20 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States 21 v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t 22 Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings 23 in other courts, both within and without the federal judicial system, if those proceedings 24 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 25 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 26 Based on a review of its own docket and other court proceedings available on 27 PACER, the Court finds that Plaintiff Joshua Davis Bland, identified as CDCR Inmate 28 #P-29302, while incarcerated, has had three prior civil actions dismissed on the grounds 1 that they were frivolous, malicious, or failed to state a claim upon which relief may be 2 granted. They are: 3 (1) Bland v. Clark, et al., Civil Case No. 1:19-cv-00197-DAD-BAM (E.D. Cal. April 17, 2019) (Order adopting Findings and Recommendations to 4 dismiss case for failing to state a claim) (strike one); 5 (2) Bland v. Cal. Dep’t of Corrections and Rehabilitation, et al., Civil Case 6 No. 1:18-cv-01357-LJO-EPG (E.D. Cal. May 2, 2019) (Order adopting 7 Findings and Recommendations to dismiss case with prejudice for failing to state a claim) (strike two); 8
9 (3) Bland v. Jerry Brown, et al., Civil Case No. 1:18-cv-01358-AWI-JDP (E.D.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOSHUA DAVIS BLAND, Case No.: 3:20-CV-0964 JLS (LL) CDCR #P-29302, 11 ORDER: (1) DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13 AND (2) DISMISSING CIVIL
14 ACTION WITHOUT PREJUDICE PEOPLE OF THE STATE OF FOR FAILURE TO PAY FILING 15 CALIFORNIA; SUPERIOR COURT OF FEE REQUIRED BY 28 U.S.C. 16 CALIFORNIA; WILLIAM WOLFE; § 1914(a) BRUCE SILVA; SAN DIEGO COUNTY 17 DISTRICT ATTORNEY; ESCONDIDO 18 POLICE OFFICER, 19 Defendants. 20 21 Plaintiff Joshua Davis Bland, currently incarcerated at the California State Prison, 22 Corcoran, located in Corcoran, California, has filed a civil rights Complaint pursuant to 42 23 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff also filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) (See ECF No. 2). 25 I. Motion to Proceed IFP 26 A. Legal Standard 27 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 28 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 1 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 2 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 3 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 4 preclude the privilege to proceed IFP in cases where the prisoner: 5 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the 6 United States that was dismissed on the grounds that it is 7 frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of 8 serious physical injury. 9 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 10 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 11 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 12 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 13 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 14 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 15 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 16 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 17 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 18 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 19 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 20 styles such dismissal as a denial of the prisoner’s application to file the action without 21 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 22 When courts “review a dismissal to determine whether it counts as a strike, the style of the 23 dismissal or the procedural posture is immaterial. Instead, the central question is whether 24 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 25 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 26 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 27 action,” however, courts may “assess a PLRA strike only when the case as a whole is 28 1 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 2 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 3 Cir. 2016)). 4 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 5 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 6 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 7 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 8 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 9 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 18 here. 19 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 20 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States 21 v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t 22 Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings 23 in other courts, both within and without the federal judicial system, if those proceedings 24 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 25 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 26 Based on a review of its own docket and other court proceedings available on 27 PACER, the Court finds that Plaintiff Joshua Davis Bland, identified as CDCR Inmate 28 #P-29302, while incarcerated, has had three prior civil actions dismissed on the grounds 1 that they were frivolous, malicious, or failed to state a claim upon which relief may be 2 granted. They are: 3 (1) Bland v. Clark, et al., Civil Case No. 1:19-cv-00197-DAD-BAM (E.D. Cal. April 17, 2019) (Order adopting Findings and Recommendations to 4 dismiss case for failing to state a claim) (strike one); 5 (2) Bland v. Cal. Dep’t of Corrections and Rehabilitation, et al., Civil Case 6 No. 1:18-cv-01357-LJO-EPG (E.D. Cal. May 2, 2019) (Order adopting 7 Findings and Recommendations to dismiss case with prejudice for failing to state a claim) (strike two); 8
9 (3) Bland v. Jerry Brown, et al., Civil Case No. 1:18-cv-01358-AWI-JDP (E.D. Cal. July 11, 2019) (Order adopting Findings and Recommendations to 10 dismiss case with prejudice for failing to state a claim) (strike three). 11 12 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 13 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 14 imminent danger of serious physical injury at the time he filed his Complaint, he is not 15 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 16 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 17 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 18 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 19 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 20 itself a matter of privilege and not right.”). 21 II. Conclusion and Orders 22 For the reasons set forth above, the Court: 23 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 24 § 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 25 prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 26 /// 27 /// 28 /// 1 ||(3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 2 ||U.S.C. § 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 3 IT IS SO ORDERED. 4 Dated: June 23, 2020 tt , 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28