1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HICKS, Case No.: 21-CV-1866 JLS (WVG) CDCR #B-80852, 12 ORDER (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND (2) DISMISSING CIVIL
15 ACTION FOR FAILURE TO PAY D. CLAYTON, et al., FILING FEE REQUIRED BY 28 16 Defendants. U.S.C. § 1914(a) 17 18 (ECF No. 2) 19 20 21 Plaintiff Michael Hicks, proceeding pro se and currently incarcerated at Richard J. 22 Donovan State Prison, has filed a civil action pursuant to 42 U.S.C. § 1983. (See Compl., 23 ECF No. 1.) Plaintiff has not paid the filing fee required to commence a civil action; 24 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (See ECF No. 2.) 26 /// 27 /// 28 /// 1 MOTION TO PROCEED IFP 2 I. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended 8 § 1915 to preclude the privilege to proceed IFP: 9 [I]f [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 10 appeal in a court of the United States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13 14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 18 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 19 unsuccessful suits may entirely be barred from IFP status under the three strikes rule . . .”). 20 The objective of the PLRA is to further “the congressional goal of reducing frivolous 21 prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 22 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 23 before and after the statute’s effective date.” Id. at 1311. 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted). These constitute strikes “even 27 if the district court styles such dismissal as a denial of the prisoner’s application to file the 28 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 1 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a strike, 2 the style of the dismissal or the procedural posture is immaterial. Instead, the central 3 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 4 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 5 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple 6 claims within a single action,” however, courts may “assess a PLRA strike only when the 7 case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 8 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 9 F.3d 1048, 1057 (9th Cir. 2016)). 10 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 11 pursuing any other IFP action in federal court unless he can show he is facing “imminent 12 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 13 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 14 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 15 II. Discussion 16 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that 17 it does not contain any “plausible allegations” to suggest that Plaintiff “faced ‘imminent 18 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 19 (quoting 28 U.S.C. § 1915(g)). Plaintiff alleges that in December of 2020 he was placed 20 on a thirty day regimen of morphine. (See Compl. at 6.) However, this prescription was 21 later “discontinued,” and he was prescribed different pain medication by Defendants. (See 22 id.) Plaintiff later filed grievances seeking to have his morphine prescription renewed that 23 were denied. (See id. at 7–9.) All the events giving rise to Plaintiff’s Complaint are alleged 24 to have occurred nearly a year ago in November and December of 2020. (See id. at 6–12.) 25 Based on these facts, Plaintiff has not established he “faced ‘imminent danger of serious 26 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 27 § 1915(g)). 28 /// 1 While Defendants typically carry the initial burden to produce evidence 2 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 3 some instances, the district court docket may be sufficient to show that a prior dismissal 4 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 5 at 1120. That is true here. 6 Based on the dockets of many court proceedings available on PACER,1 this Court 7 finds that Plaintiff Michael Hicks, identified as CDCR #B-80852, while incarcerated, has 8 had at least three prisoner civil actions or appeals dismissed on the grounds that they were 9 frivolous, malicious, or failed to state a claim upon which relief may be granted. See Hicks 10 v. Berkson, et al., No. 1:02-cv05905-AWI-/SMS (E.D. Cal. June 19, 2003) (dismissing for 11 failure to state a claim); Hicks v. Family Healthcare, et al., No. 2:08-cv-05978-UA-FMO 12 (C.D. Cal. Oct. 20, 2008) (dismissing action as legally and/or patently frivolous); Hicks v. 13 Cate, et al., No. 2:08-cv-00511-SPK (E.D. Cal. Apr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HICKS, Case No.: 21-CV-1866 JLS (WVG) CDCR #B-80852, 12 ORDER (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND (2) DISMISSING CIVIL
15 ACTION FOR FAILURE TO PAY D. CLAYTON, et al., FILING FEE REQUIRED BY 28 16 Defendants. U.S.C. § 1914(a) 17 18 (ECF No. 2) 19 20 21 Plaintiff Michael Hicks, proceeding pro se and currently incarcerated at Richard J. 22 Donovan State Prison, has filed a civil action pursuant to 42 U.S.C. § 1983. (See Compl., 23 ECF No. 1.) Plaintiff has not paid the filing fee required to commence a civil action; 24 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (See ECF No. 2.) 26 /// 27 /// 28 /// 1 MOTION TO PROCEED IFP 2 I. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. Paramo, 7 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended 8 § 1915 to preclude the privilege to proceed IFP: 9 [I]f [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 10 appeal in a court of the United States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13 14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 18 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 19 unsuccessful suits may entirely be barred from IFP status under the three strikes rule . . .”). 20 The objective of the PLRA is to further “the congressional goal of reducing frivolous 21 prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 22 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 23 before and after the statute’s effective date.” Id. at 1311. 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted). These constitute strikes “even 27 if the district court styles such dismissal as a denial of the prisoner’s application to file the 28 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 1 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a strike, 2 the style of the dismissal or the procedural posture is immaterial. Instead, the central 3 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 4 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 5 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple 6 claims within a single action,” however, courts may “assess a PLRA strike only when the 7 case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 8 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 9 F.3d 1048, 1057 (9th Cir. 2016)). 10 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 11 pursuing any other IFP action in federal court unless he can show he is facing “imminent 12 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 13 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 14 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 15 II. Discussion 16 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that 17 it does not contain any “plausible allegations” to suggest that Plaintiff “faced ‘imminent 18 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 19 (quoting 28 U.S.C. § 1915(g)). Plaintiff alleges that in December of 2020 he was placed 20 on a thirty day regimen of morphine. (See Compl. at 6.) However, this prescription was 21 later “discontinued,” and he was prescribed different pain medication by Defendants. (See 22 id.) Plaintiff later filed grievances seeking to have his morphine prescription renewed that 23 were denied. (See id. at 7–9.) All the events giving rise to Plaintiff’s Complaint are alleged 24 to have occurred nearly a year ago in November and December of 2020. (See id. at 6–12.) 25 Based on these facts, Plaintiff has not established he “faced ‘imminent danger of serious 26 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 27 § 1915(g)). 28 /// 1 While Defendants typically carry the initial burden to produce evidence 2 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 3 some instances, the district court docket may be sufficient to show that a prior dismissal 4 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 5 at 1120. That is true here. 6 Based on the dockets of many court proceedings available on PACER,1 this Court 7 finds that Plaintiff Michael Hicks, identified as CDCR #B-80852, while incarcerated, has 8 had at least three prisoner civil actions or appeals dismissed on the grounds that they were 9 frivolous, malicious, or failed to state a claim upon which relief may be granted. See Hicks 10 v. Berkson, et al., No. 1:02-cv05905-AWI-/SMS (E.D. Cal. June 19, 2003) (dismissing for 11 failure to state a claim); Hicks v. Family Healthcare, et al., No. 2:08-cv-05978-UA-FMO 12 (C.D. Cal. Oct. 20, 2008) (dismissing action as legally and/or patently frivolous); Hicks v. 13 Cate, et al., No. 2:08-cv-00511-SPK (E.D. Cal. Apr. 23, 2009) (dismissing for failure to 14 state a claim). Additionally, other courts have found that these cases and several others 15 constitute three strikes for purposes of § 1915(g). See Hicks v. Hamkar, No. 2:13-cv-1678- 16 DAD-O at 4–6 (E.D. Cal. Mar. 25, 2015); Hicks v. Chisman, No. 3:13-cv-505-SI at 2–3 17 (N.D. Cal. Apr. 4, 2013); Hicks v. Lizzaraga, et al., No. 3:15-cv-2408-H-JLB at 3 (S.D. 18 Cal. Feb. 16, 2016). 19 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 20 the three “strikes” permitted by § 1915(g), and he fails to make any plausible allegation 21 that he faced imminent danger of serious physical injury at the time he filed this case, he 22 is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 23
24 25 1 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA- WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 26 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015). A court “may take notice of proceedings in other courts, both within and without the federal 27 judicial system, if those proceedings have a direct relation to matters at issue.” Bias, 508 F.3d at 1225 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. 28 1 || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all 2 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 3 || the legal system from continuing to abuse it while enjoying IFP status’’); see also Franklin 4 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 5 itself a matter of privilege and not right.”’). 6 CONCLUSION 7 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed 8 || IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g), DISMISSES this civil action based on 9 || Plaintiff's failure to pay the civil filing fee required by 28 U.S.C. § 1914(a), CERTIFIES 10 an IFP appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. 11 |/§ 1915(a)(3), and DIRECTS the Clerk of the Court to close the file. 12 IT IS SO ORDERED. 13 ||Dated: December 6, 2021 tt 14 pee Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5