1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 3:23-cv-02241-CAB-AHG CDCR #V-46240, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 FOR FAILURE TO PAY FILING SAN DIEGO COUNTY; NORTH FEE REQUIRED BY 16 COUNTY DIVISION; SAN DIEGO 28 U.S.C. § 1914(a) 17 COUNTY JAILS AND DETENTION FACILITY; CDCR; RICHARD J. [ECF No. 5] 18 DONOVAN CORRECTIONAL 19 FACILITY; HIGH DESERT STATE PRISON; OCEANSIDE POLICE 20 DEPARTMENT, 21 Defendants. 22 23 Plaintiff Wayne Elijah Jones, who is proceeding pro se and currently incarcerated at 24 Richard J. Donovan Correctional Facility in San Diego, has filed a civil rights Complaint 25 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) While his Complaint is difficult 26 to decipher, Plaintiff appears to allege that two state prisons, several local detention 27 facilities, the County of San Diego, and the Oceanside Police Department have violated his 28 right to privacy and contributed to the decline of his mental health and well-being on 1 unspecified occasions from January 2020 through November 2023. (Id. at 1‒3, 4‒6.) He 2 seeks an “investigation on tablets,” “access to the internet,” and a “policy that protects [his] 3 privacy,” as well as $11.5 million in compensatory and punitive damages. (Id. at 2, 7.) 4 Jones has not paid the full civil filing fee required by 28 U.S.C. § 1914(a); instead 5 he has filed a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF No. 5.) 6 I. MOTION TO PROCEED IFP 7 A. Standard of Review 8 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 9 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Jones, however, “face an 10 additional hurdle.” Id. 11 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 12 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 13 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 14 proceed IFP in cases where the prisoner: 15 . . . 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 16 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 17 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 18 19 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 21 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 22 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 23 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 24 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 25 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 26 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 28 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 1 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 2 styles such dismissal as a denial of the prisoner’s application to file the action without 3 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 4 When courts “review a dismissal to determine whether it counts as a strike, the style of the 5 dismissal or the procedural posture is immaterial. Instead, the central question is whether 6 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 7 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 8 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 9 action,” however, courts may “assess a PLRA strike only when the case as a whole is 10 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 11 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 12 Cir. 2016)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051‒ 16 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 17 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 18 B. Discussion 19 The Court has reviewed Jones’s Complaint and finds it contains no “plausible 20 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 21 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, his pleading 22 contains only broad and mostly incoherent allegations involving a group of unrelated state 23 correctional and municipal entities Jones believes have violated his right to privacy and to 24 have “damaged [his] physical, mental, spiritual, and psychological health” in unspecified 25 ways while he has been held in their custody. (See Compl. at 4.) These types of global 26 and conclusory assertions, wholly untethered to a particular person or time, fail to meet the 27 “ongoing danger” required to meet § 1915(g)’s exception for cases presenting the risk of 28 imminent physical harm. See Cervantes, 493 F.3d at 1056‒57; see also Ray v. Lara, 31 1 F.4th 692, 701 (9th Cir. 2022) (“[T]he imminent danger exception to the PLRA three- 2 strikes provision requires a nexus between the alleged imminent dangers and the violations 3 of law alleged in the complaint.”); see also Sierra v. Woodford, 2010 WL 1657493, at *3 4 (E.D. Cal. April 23, 2010) (finding prisoner’s “long, narrative, rambling statements 5 regarding a cycle of violence, and vague references to motives to harm” insufficient to 6 satisfy § 1915(g)’s exception for “imminent danger from a particular harm.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 3:23-cv-02241-CAB-AHG CDCR #V-46240, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 FOR FAILURE TO PAY FILING SAN DIEGO COUNTY; NORTH FEE REQUIRED BY 16 COUNTY DIVISION; SAN DIEGO 28 U.S.C. § 1914(a) 17 COUNTY JAILS AND DETENTION FACILITY; CDCR; RICHARD J. [ECF No. 5] 18 DONOVAN CORRECTIONAL 19 FACILITY; HIGH DESERT STATE PRISON; OCEANSIDE POLICE 20 DEPARTMENT, 21 Defendants. 22 23 Plaintiff Wayne Elijah Jones, who is proceeding pro se and currently incarcerated at 24 Richard J. Donovan Correctional Facility in San Diego, has filed a civil rights Complaint 25 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) While his Complaint is difficult 26 to decipher, Plaintiff appears to allege that two state prisons, several local detention 27 facilities, the County of San Diego, and the Oceanside Police Department have violated his 28 right to privacy and contributed to the decline of his mental health and well-being on 1 unspecified occasions from January 2020 through November 2023. (Id. at 1‒3, 4‒6.) He 2 seeks an “investigation on tablets,” “access to the internet,” and a “policy that protects [his] 3 privacy,” as well as $11.5 million in compensatory and punitive damages. (Id. at 2, 7.) 4 Jones has not paid the full civil filing fee required by 28 U.S.C. § 1914(a); instead 5 he has filed a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF No. 5.) 6 I. MOTION TO PROCEED IFP 7 A. Standard of Review 8 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 9 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Jones, however, “face an 10 additional hurdle.” Id. 11 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 12 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 13 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 14 proceed IFP in cases where the prisoner: 15 . . . 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 16 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 17 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 18 19 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 21 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 22 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 23 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 24 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 25 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 26 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 28 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 1 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 2 styles such dismissal as a denial of the prisoner’s application to file the action without 3 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 4 When courts “review a dismissal to determine whether it counts as a strike, the style of the 5 dismissal or the procedural posture is immaterial. Instead, the central question is whether 6 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 7 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 8 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 9 action,” however, courts may “assess a PLRA strike only when the case as a whole is 10 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 11 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 12 Cir. 2016)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051‒ 16 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 17 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 18 B. Discussion 19 The Court has reviewed Jones’s Complaint and finds it contains no “plausible 20 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 21 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, his pleading 22 contains only broad and mostly incoherent allegations involving a group of unrelated state 23 correctional and municipal entities Jones believes have violated his right to privacy and to 24 have “damaged [his] physical, mental, spiritual, and psychological health” in unspecified 25 ways while he has been held in their custody. (See Compl. at 4.) These types of global 26 and conclusory assertions, wholly untethered to a particular person or time, fail to meet the 27 “ongoing danger” required to meet § 1915(g)’s exception for cases presenting the risk of 28 imminent physical harm. See Cervantes, 493 F.3d at 1056‒57; see also Ray v. Lara, 31 1 F.4th 692, 701 (9th Cir. 2022) (“[T]he imminent danger exception to the PLRA three- 2 strikes provision requires a nexus between the alleged imminent dangers and the violations 3 of law alleged in the complaint.”); see also Sierra v. Woodford, 2010 WL 1657493, at *3 4 (E.D. Cal. April 23, 2010) (finding prisoner’s “long, narrative, rambling statements 5 regarding a cycle of violence, and vague references to motives to harm” insufficient to 6 satisfy § 1915(g)’s exception for “imminent danger from a particular harm.”). 7 And while Defendants typically carry the initial burden to produce evidence 8 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 9 some instances, the district court docket may be sufficient to show that a prior dismissal 10 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 11 at 1120. That is the case here. 12 Based on a review of its own dockets and other court proceedings publicly available 13 on PACER,1 the Court finds that Plaintiff Wayne Elijah Jones, currently identified as 14 CDCR Inmate #BU-7712, while incarcerated, has had four prior civil actions and/or 15 appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a 16 claim upon which relief may be granted. They are: 17 (1) Jones v. Peng, et al., No. 21-cv-1912-MMA-BLM (S.D. Cal. May 12, 2022) (Order Granting Motion to Proceed IFP, Dismissing Complaint with 18 leave to amend for failure to state a claim pursuant to 28 U.S.C. 19 §§ 1915(e)(2)(B) & 1915A(b) [ECF No. 11]) (May 12, 2022 Order dismissing action [ECF No. 12]) (strike one); 20
21 (2) Jones v. Peng, et al., No. 22-55543 (9th Cir. Nov. 17, 2022) (Order Revoking IFP and Dismissing Appeal as Frivolous [Dkt No. 24]) (strike two); 22
24 25 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv-00452- MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Services, 804 26 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘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 v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 28 1 (3) Jones vy. Cal. Gov’t Claims Program, et al., No. 23-cv-1256-WQH- 7 DDL (S.D. Cal. Aug. 21, 2023) (Order Dismissing Case for failure to state a claim pursuant to 28 U.S.C. §1915A [ECF No. 7]) (strike three); and 3 A (4) Jones v. Wasco State Prison, No. 23-cv-0543-JLT-BAM (E.D. Cal. Sept. 15, 2023) (Findings and Recommendation (“F&R’’) to Dismiss Civil 5 Action for failure to state a claim [ECF No. 22]); (Order Adopting F&R and 6 Dismissing Action [ECF No. 23]) (strike four). 7 Accordingly, because Jones has accumulated four prior dismissals—all qualifying 8 strikes under § 1915(g)—and fails to make any “plausible allegations” of imminent 9 || danger of serious physical injury at the time he filed his Complaint, he is not entitled to the 10 || privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v. 11 || Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not 12 || prevent all prisoners from accessing the courts; it only precludes prisoners with a history 13 || of abusing the legal system from continuing to abuse it while enjoying IFP status”); see 14 ||also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to 15 || proceed IFP is itself a matter of privilege and not right.’’). 16 CONCLUSION 17 For the reasons discussed, the Court DENIES Plaintiff's Motion to Proceed IFP 18 ||(ECF No. 5) as barred by 28 U.S.C. § 1915(g), DISMISSES this civil action without 19 || prejudice for failure to pay the $405 civil and administrative filing fees required by 28 20 |/U.S.C. § 1914(a), CERTIFIES that an IFP appeal from this Order would not be taken in 21 || good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of the Court to 22 close the file. 23 IT IS SO ORDERED. 24 Dated: February 2, 2024 € ZL 25 Hon. Cathy Ann Bencivengo 26 United States District Judge 27 28 5 /~ ~—ms nN mom □□□ lem □□□ □□ □□ □□□□