1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERICA D. HAYWOOD, Case No.: 3:20-cv-2279-LAB-DEB Booking #19750859, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS SAN DIEGO COUNTY SHERIFF, 15 AS BARRED BY 28 U.S.C. § 1915(g) OCEANSIDE POLICE CHIEF, TODD [Dkt. 2] 16 GLORIA, CITY OF OCEANSIDE,
MAYOR OF OCEANSIDE, 17 AND Defendants. 18 (2) DISMISSING CIVIL ACTION 19 FOR FAILURE TO PAY FILING FEE REQUIRED BY 20 28 U.S.C. § 1914(a) 21 22 Plaintiff, Erica D. Haywood, while in custody at the San Diego County Sheriff 23 Department’s Las Colinas Detention & Reentry Facility, has a civil rights Complaint 24 (“Compl.”) pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 25 Her pleading is somewhat rambling and disjointed, but she seeks $87 million in 26 general and punitive damages from Defendants, based on what seem to be unrelated 27 incidents of harassment, “mis-housing” and “mislabeling” Haywood, who appears to be 28 gender non-conforming. (Id. at 2–3, 5.) She also contends Defendants stole her personal 1 property and mail, misappropriated insurance funds and provided negligent medical and 2 mental health care treatment. (Id. at 2‒3.) Haywood did not pay the civil filing fee required 3 by 28 U.S.C. § 1914(a) at the time she filed her Complaint; instead, she filed a Motion to 4 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 5 I. Motion to Proceed IFP 6 A. Standard of Review 7 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 8 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Haywood, however, “face 9 an additional hurdle.” Id. 10 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 11 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 12 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 13 proceed IFP in cases where the prisoner: 14 . . . 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 15 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 16 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 17 18 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 19 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 20 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 21 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 22 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 23 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 24 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 25 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 26 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 27 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 28 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 1 styles such dismissal as a denial of the prisoner’s application to file the action without 2 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 3 When courts “review a dismissal to determine whether it counts as a strike, the style of the 4 dismissal or the procedural posture is immaterial. Instead, the central question is whether 5 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 6 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 7 F.3d 607, 615 (4th Cir. 2013)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits her pursuit 9 of any subsequent IFP civil action or appeal in federal court unless she faces “imminent 10 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 11 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 13 B. Discussion 14 Haywood’s Complaint does not clearly allege a basis for § 1983 liability at all, let 15 alone assert “plausible allegations” to suggest she “faced ‘imminent danger of serious 16 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 17 § 1915(g)). Instead, as best the Court can decipher, Haywood seeks to sue various 18 governmental entities and individuals for having harassed, entrapped, “mislabeled,” “mis- 19 housed,” mistreated and discriminated against her both before and during her current term 20 of detention. See Compl. at 2‒6; Sierra v. Woodford, 2010 WL 1657493, at *3 (E.D. Cal. 21 April 23, 2010) (finding “long, narrative, rambling stat[e]ments regarding a cycle of 22 violence, and vague references to motives to harm” insufficient to show “ongoing danger” 23 as required by 28 U.S.C. § 1915(g) and Cervantes.), aff’d sub nom. Sierra v. Woodford, 24 Dir. of Corr., 505 F. App’x 641 (9th Cir. 2013). 25 And while Defendants typically carry the initial burden to produce evidence 26 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 27 some instances, the district court docket may be sufficient to show that a prior dismissal 28 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1 1120. That is the case here. 2 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 3 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 4 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 5 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 6 notice of proceedings in other courts, both within and without the federal judicial system, 7 if those proceedings have a direct relation to matters at issue.’” Bias v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERICA D. HAYWOOD, Case No.: 3:20-cv-2279-LAB-DEB Booking #19750859, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS SAN DIEGO COUNTY SHERIFF, 15 AS BARRED BY 28 U.S.C. § 1915(g) OCEANSIDE POLICE CHIEF, TODD [Dkt. 2] 16 GLORIA, CITY OF OCEANSIDE,
MAYOR OF OCEANSIDE, 17 AND Defendants. 18 (2) DISMISSING CIVIL ACTION 19 FOR FAILURE TO PAY FILING FEE REQUIRED BY 20 28 U.S.C. § 1914(a) 21 22 Plaintiff, Erica D. Haywood, while in custody at the San Diego County Sheriff 23 Department’s Las Colinas Detention & Reentry Facility, has a civil rights Complaint 24 (“Compl.”) pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 25 Her pleading is somewhat rambling and disjointed, but she seeks $87 million in 26 general and punitive damages from Defendants, based on what seem to be unrelated 27 incidents of harassment, “mis-housing” and “mislabeling” Haywood, who appears to be 28 gender non-conforming. (Id. at 2–3, 5.) She also contends Defendants stole her personal 1 property and mail, misappropriated insurance funds and provided negligent medical and 2 mental health care treatment. (Id. at 2‒3.) Haywood did not pay the civil filing fee required 3 by 28 U.S.C. § 1914(a) at the time she filed her Complaint; instead, she filed a Motion to 4 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 5 I. Motion to Proceed IFP 6 A. Standard of Review 7 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 8 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Haywood, however, “face 9 an additional hurdle.” Id. 10 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 11 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 12 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 13 proceed IFP in cases where the prisoner: 14 . . . 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 15 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 16 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 17 18 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 19 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 20 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 21 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 22 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 23 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 24 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 25 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 26 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 27 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 28 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 1 styles such dismissal as a denial of the prisoner’s application to file the action without 2 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 3 When courts “review a dismissal to determine whether it counts as a strike, the style of the 4 dismissal or the procedural posture is immaterial. Instead, the central question is whether 5 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 6 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 7 F.3d 607, 615 (4th Cir. 2013)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits her pursuit 9 of any subsequent IFP civil action or appeal in federal court unless she faces “imminent 10 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 11 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 13 B. Discussion 14 Haywood’s Complaint does not clearly allege a basis for § 1983 liability at all, let 15 alone assert “plausible allegations” to suggest she “faced ‘imminent danger of serious 16 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 17 § 1915(g)). Instead, as best the Court can decipher, Haywood seeks to sue various 18 governmental entities and individuals for having harassed, entrapped, “mislabeled,” “mis- 19 housed,” mistreated and discriminated against her both before and during her current term 20 of detention. See Compl. at 2‒6; Sierra v. Woodford, 2010 WL 1657493, at *3 (E.D. Cal. 21 April 23, 2010) (finding “long, narrative, rambling stat[e]ments regarding a cycle of 22 violence, and vague references to motives to harm” insufficient to show “ongoing danger” 23 as required by 28 U.S.C. § 1915(g) and Cervantes.), aff’d sub nom. Sierra v. Woodford, 24 Dir. of Corr., 505 F. App’x 641 (9th Cir. 2013). 25 And while Defendants typically carry the initial burden to produce evidence 26 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 27 some instances, the district court docket may be sufficient to show that a prior dismissal 28 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1 1120. That is the case here. 2 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 3 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 4 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 5 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 6 notice of proceedings in other courts, both within and without the federal judicial system, 7 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 8 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 9 Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 10 Inc., 971 F.2d 244, 248 (9th Cir. 1992). 11 Therefore, this Court takes judicial notice of its own records, together with the 12 docket proceedings of other federal courts available on PACER, and finds that Plaintiff 13 Erica D. Haywood, currently identified as San Diego County Sheriff Department’s Inmate 14 Booking #18123564,1 while incarcerated, has had at least eight prior prisoner civil actions 15 or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state 16 a claim upon which relief may be granted. They are: 17 1) Haywood v. Fifth U.S. Circuit Court of Appeals, et al., Civil Case No. 4:09-cv-00202 (S.D. Texas, March 12, 2009) (Memorandum Opinion and 18 Order granting application to proceed IFP and dismissing civil action with 19 prejudice as “legally baseless”) (ECF Nos. 8, 9) (strike one); 20 2) Haywood v. State of Georgia, Civil Case No. 1:10-cv-00039-TWT 21 (N.D. Georgia, Feb. 2, 2010) (Order and Opinion granting request to proceed 22 23
24 1 Haywood has been previously identified as San Diego County Inmate Booking 25 #19750859, as Inmate #804107 in San Antonio Texas’s Bexar County Adult Detention Center, and as Inmate #933519, while she was detained in Atlanta Georgia’s Fulton County 26 Jail. She has previously admitted to having filed, and to have had dismissed, at least one 27 other civil action while she was incarcerated in the Western District of Texas sometime in 2012. See Haywood v. San Diego, CA County, et al., S.D. Cal. Civil Case No. 3:18-cv- 28 1 IFP and dismissing case as frivolous pursuant to 28 U.S.C. § 1915A) (ECF No. 3); (Feb. 3, 2010) (Judgment) (ECF No. 4) (strike two); 2
3 3) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00448- XR (W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint 4 as frivolous, for failure to state a claim, and for seeking relief from immune 5 defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)- (2)) (ECF Nos. 14, 15) (strike three); 6
7 4) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00467- XR (W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint 8 as frivolous, for failure to state a claim, and for seeking relief from immune 9 defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)- (2)) (ECF Nos. 8, 9) (strike four); 10
11 5) Haywood v. Bexar County, Texas, et al., Civil Case No. 5:11-cv-01115- FB (W.D. Texas) (Feb. 1, 2012) (Report & Recommendation [“R&R”] to 12 Dismiss § 1983 Complaint for failure to state a claim pursuant to 28 U.S.C. 13 § 1915A) (ECF No. 3); (Feb. 28, 2012) (Order Adopting R&R and Judgment) (ECF Nos. 7, 8) (strike five); 14
15 6) Haywood v. San Diego CA Public Defender, et al., Civil Case No. 3:18- cv-01761-MMA-BGS (S.D. Cal.) (Aug. 30, 2018) (Order Dismissing Civil 16 Action for Failure to Pay Filing Fees Required by 28 U.S.C. § 1914(a) and as 17 Frivolous pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF. No. 2) (strike six); and
18 7) Haywood v. San Diego County, et al., Civil Appeal No. 18-56333 (9th 19 Cir., April 22, 2019) (Order denying appellant’s motion to proceed in forma pauperis and “dismissing this appeal as frivolous, pursuant to 28 U.S.C. 20 § 1915(e)(2).”) (ECF No. 10) (strike seven). 21 8) Haywood v. Univ. of CA, San Diego, et al., et al., Civil Case No. 3:19- 22 cv-01955-MMA-BGS (S.D. Cal.) (Dec. 10, 2019) (Order Dismissing Civil 23 Action for Failure to Pay Filing Fees Required by 28 U.S.C. § 1914(a) and as Frivolous pursuant to 28 U.S.C. § 1915A(b)(1)) (strike eight). 24 25 Accordingly, because Haywood has accumulated more than three “strikes” in prior 26 litigation pursuant to § 1915(g), and fails in this litigation to make a “plausible allegation” 27 of imminent danger of serious physical injury at the time of filing, she is not entitled to 28 proceed IFP in this case. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1 |] 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners 2 || from accessing the courts; it only precludes prisoners with a history of abusing the legal 3 || system from continuing to abuse it while enjoying IFP status).? 4 Conclusion and Orders 5 For the reasons explained, the Court: 6 (1) DENIES Haywood’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 7 1915(g); 8 (2) DISMISSES this civil action sua sponte for failing to prepay the $400 civil and 9 || administrative filing fees required by 28 U.S.C. § 1914(a); 10 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 11 |] U.S.C. § 1915(a)(3); and 12 (4) DIRECTS the Clerk of the Court to enter a judgment of dismissal and close the 13 || file. 14 IT IS SO ORDERED. 15 16 || Dated: December 1, 2020 ym f Af. (By Wy 17 Hon. Larry A. Burns 18 Chief United States District Judge 19 20 21 22 23 ||? As aconsequence of her litigation history, Haywood has previously been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) both in this Court as well as in the Western District of Texas. See Haywood v. Director Brad Livingston, et al., Civil Case No. 6:16- 25 |}cv-00320-RP (Sept. 2, 2016) (Order Denying leave to proceed IFP and Dismissing Complaint without prejudice “pursuant to the three-dismissal rule of 28 U.S.C. § 1915(g).”) 6 (ECF No. 4); Haywood v. San Diego, CA County, et al., S.D. Cal. Civil Case No. 3:18-cv- 27 ||01315-BTM-AGS (Order Denying Motion for Leave to Proceed In Forma Pauperis as 2g Barred by 28 U.S.C. § 1915(g) and Denying Motion for Immediate Injunction and Release) (Sept. 24, 2018) (ECF No. 6).