1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 GARLAND JONES, Case No.: 3:19-cv-01521-CAB-JLB CDCR #F-47928, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS
14 AS BARRED BY 28 U.S.C. § 1915(g) ELIZALDE, CCI Counselor, et al., [ECF No. 2] 15 Defendants. 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, Garland Jones., currently incarcerated at Richard J. Donovan Correctional 22 Facility (“RJD”), in San Diego, California, has filed a civil rights Complaint pursuant to 23 42 U.S.C. § 1983. See Compl., ECF No. 1. 24 Plaintiff claims several RJD librarians and a correctional counselor have denied him 25 access to the courts by withholding documents, interfering with his complaints, denying 26 him photocopies, and otherwise “derailing” his “legal matters.” Id. at 3-6. He has not 27 prepaid the full civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a 28 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. 6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 7 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 8 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 9 proceed IFP in cases where the prisoner: 10 . . . 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 11 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 12 upon which relief can be granted, unless the prisoner is under 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). “Pursuant to 16 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 17 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 18 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 19 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 20 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 21 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 22 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 23 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 24 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 25 styles such dismissal as a denial of the prisoner’s application to file the action without 26 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 27 When courts “review a dismissal to determine whether it counts as a strike, the style of the 28 dismissal or the procedural posture is immaterial. Instead, the central question is whether 1 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 2 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 3 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 4 action,” however, courts may “assess a PLRA strike only when the case as a whole is 5 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 6 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 7 Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he 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 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as described 17 above, Plaintiff seeks to sue a series of RJD librarians based on claims that they have all 18 interfered with his ability to file and gather documentation he claims relevant to unspecified 19 complaints and other “legal matters.” See Compl., ECF No. 1 at 3-6. These claims fail to 20 plausibly meet § 1915(g)’s exception for imminent danger. See Cervantes, 493 F.3d at 21 1055-56 (plaintiff must allege to face a real, proximate and/or ongoing danger at the time 22 of filing); Prophet v. Clark, No. CV 1-08-00982-FJM, 2009 WL 1765197, at *1 (E.D. Cal. 23 June 22, 2009) (finding prisoner’s access to the courts, interference with legal mail, and 24 retaliation claims insufficient to satisfy § 1915(g) exception in cases of “imminent danger 25 of serious physical injury”). 26 And while Defendants typically carry the initial burden to produce evidence 27 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 28 some instances, the district court docket may be sufficient to show that a prior dismissal 1 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 2 1120. That is the case here. 3 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 4 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 5 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 6 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 7 notice of proceedings in other courts, both within and without the federal judicial system, 8 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 9 1212, 1225 (9th Cir.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 GARLAND JONES, Case No.: 3:19-cv-01521-CAB-JLB CDCR #F-47928, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS
14 AS BARRED BY 28 U.S.C. § 1915(g) ELIZALDE, CCI Counselor, et al., [ECF No. 2] 15 Defendants. 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, Garland Jones., currently incarcerated at Richard J. Donovan Correctional 22 Facility (“RJD”), in San Diego, California, has filed a civil rights Complaint pursuant to 23 42 U.S.C. § 1983. See Compl., ECF No. 1. 24 Plaintiff claims several RJD librarians and a correctional counselor have denied him 25 access to the courts by withholding documents, interfering with his complaints, denying 26 him photocopies, and otherwise “derailing” his “legal matters.” Id. at 3-6. He has not 27 prepaid the full civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a 28 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. 6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 7 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 8 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 9 proceed IFP in cases where the prisoner: 10 . . . 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 11 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 12 upon which relief can be granted, unless the prisoner is under 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). “Pursuant to 16 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 17 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 18 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 19 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 20 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 21 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 22 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 23 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 24 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 25 styles such dismissal as a denial of the prisoner’s application to file the action without 26 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 27 When courts “review a dismissal to determine whether it counts as a strike, the style of the 28 dismissal or the procedural posture is immaterial. Instead, the central question is whether 1 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 2 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 3 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 4 action,” however, courts may “assess a PLRA strike only when the case as a whole is 5 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 6 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 7 Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he 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 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as described 17 above, Plaintiff seeks to sue a series of RJD librarians based on claims that they have all 18 interfered with his ability to file and gather documentation he claims relevant to unspecified 19 complaints and other “legal matters.” See Compl., ECF No. 1 at 3-6. These claims fail to 20 plausibly meet § 1915(g)’s exception for imminent danger. See Cervantes, 493 F.3d at 21 1055-56 (plaintiff must allege to face a real, proximate and/or ongoing danger at the time 22 of filing); Prophet v. Clark, No. CV 1-08-00982-FJM, 2009 WL 1765197, at *1 (E.D. Cal. 23 June 22, 2009) (finding prisoner’s access to the courts, interference with legal mail, and 24 retaliation claims insufficient to satisfy § 1915(g) exception in cases of “imminent danger 25 of serious physical injury”). 26 And while Defendants typically carry the initial burden to produce evidence 27 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 28 some instances, the district court docket may be sufficient to show that a prior dismissal 1 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 2 1120. That is the case here. 3 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 4 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 5 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 6 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 7 notice of proceedings in other courts, both within and without the federal judicial system, 8 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 9 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 10 Cir. 2002)). 11 Based on a review of its own dockets and other court proceedings available on 12 PACER, the Court finds that Plaintiff Garland Jones, identified as CDCR Inmate #F-47928, 13 while incarcerated, has had four prior civil actions dismissed on the grounds that they were 14 frivolous, malicious, or failed to state a claim upon which relief may be granted. 15 They are: 16 (1) Jones v. Tolson, et al., Civil Case No. 1:15-cv-01037-JDP (E.D. Cal. Sept. 14, 2015) (Order dismissing civil action for failing to state a claim pursuant 17 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), (2)) (ECF No. 17) (strike 18 one);
19 (2) Jones v. Tiscornia, et al., Civil Case No. 3:18-cv-00544-GPC-PCL (S.D. 20 Cal. July 30, 2018) (Order dismissing second amended complaint for failing to state a claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (ECF No. 11) 21 (strike two); 22 (3) Jones v. Mailroom Officials at CSATF, et al., Civil Case No. 1:17-cv- 23 00281-LJO-SKO (E.D. Cal. Oct. 31, 2018) (Findings and Recommendations 24 [“F&R”] to dismiss second amended complaint for failure/inability to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), (2) and § 1915(e)(2)(B)(ii)) (ECF 25 No. 22); (E.D. Cal. Jan. 9, 2019 Order adopting F&R) (ECF No. 24) (strike 26 three); and
27 (4) Jones v. Cal. Corr. Healthcare Servs., et al., Civil Case No. 2:17-cv- 28 00738-WBS-DB (E.D. Cal. March 21, 2019) (Order & F&R to dismiss second 1 amended complaint for failing to state a claim pursuant to 28 U.S.C. 7 § 1915A(b)(1) & (2)) (ECF No. 30); (April 26, 2019 Order adopting F&R and dismissing second amended complaint without leave to amend) (ECF No. 32) 3 (strike four). 4 Accordingly, because Plaintiff has, while incarcerated, accumulated at least four 5 ||*strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 6 || imminent danger of serious physical injury at the time he filed his Complaint, he is not 7 || entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 8 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 9 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 10 Il the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin Il Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 12 | itself a matter of privilege and not right.’’).! 13 Conclusion and Orders 14 For the reasons set forth above, the Court: 15 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 16 |Ig 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 17 prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); (3) 18 || CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. 19 § 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 20 IT IS SO ORDERED. 21 |! Dated: September 26, 2019 22 73 Hon. Cathy Ann Bencivengo United States District Judge 24 25 26 ||! In fact, Plaintiff has been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in this Court on five previous occasions. See Jones v. Blahnik, et al., S.D. Cal. Civil Case No. 3:18-cv-02262-GPC-BLM 27 (ECF No. 11); Jones v. Elizaldie, S.D. Cal. Civil Case No. 3:18-cv-02734-JLS-MDD (ECE No. 4); Jones 28 ||": Elizaldie, et al., S.D. Cal. Civil Case No. 3:19-cv-00296-BAS-AGS (ECF No. 4); and Jones v. Campos, et al., S.D. Cal. Civil Case No. 3:19-cv-01340-LAB (JLB) (ECE No. 4).
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