Juan Calderon v. CDCR Directors; Prison Employees Union or Unions

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN CALDERON, Case No.: 26-cv-01368-AJB-DEB CDCR #H-75038, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PAY FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) CDCR DIRECTORS; PRISON 15 EMPLOYESS UNION OR UNIONS, 16 Defendants. 17 18 19 Plaintiff Juan Calderon, who is proceeding without counsel and incarcerated at 20 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed this 21 civil rights action pursuant to 42 U.S.C. § 1983.1 (Doc. No. 1.) However, Plaintiff has not 22 paid the civil filing fee required by 28 U.S.C. § 1914(a) and is not entitled to proceed in 23 forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Therefore, the Court DISMISSES 24 his case. 25 /// 26 27 1 This case was originally filed in the United States District Court for the Northern District of California and was transferred to this Court where venue is proper on March 3, 2026. (See Doc. Nos. 7; 28 1 IFP MOTION 2 A. Legal Standard 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 5 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 6 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 7 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s 8 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 9 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 10 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 11 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 12 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 13 . . . if [he] 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 14 was dismissed on the grounds that it is frivolous, malicious, or fails to state a 15 claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Once a prisoner 19 has accumulated three strikes, he is prohibited by § 1915(g) from pursuing any other IFP 20 action in federal court unless he can show he is facing “imminent danger of serious physical 21 injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s 22 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced 23 ‘imminent danger of serious physical injury’ at the time of filing.”). 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 fail[ed] to state a 26 claim,’” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as 27 a denial of the prisoner’s application to file the action without prepayment of the full filing 28 fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a 1 dismissal to determine whether it counts as a strike, the style of the dismissal or the 2 procedural posture is immaterial. Instead, the central question is whether the dismissal 3 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 4 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (citation omitted). 5 B. Plaintiff’s Prior “Strikes” 6 Defendants typically carry the initial burden to produce evidence demonstrating a 7 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 8 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 9 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 10 (9th Cir. 2005). This is one of those instances, as a review of Plaintiff’s district and 11 appellate court dockets confirms he is no longer eligible to proceed IFP because while 12 incarcerated, he has had more than three prior prisoner civil actions dismissed for a 13 “qualifying reason” under § 1915(g). Hoffman, 928 F.3d at 1152. 14 Pursuant to Federal Rule of Evidence 201(b)(2), the Court may take judicial notice 15 of the docket records in Plaintiff’s prior cases. See Andrews, 398 F.3d at 1120; United 16 States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial 17 notice of undisputed matters of public record, which may include court records available 18 through PACER.”). 19 The following records are sufficient to show Plaintiff has six qualifying strikes: 20 (1) Calderon v. Allison, No. 2:21-cv-01896-CKD P, 2023 WL 4906783, at *2 (E.D. Cal. Aug. 1, 2023) (Order and Findings and Recommendations 21 [“F&Rs”] to dismiss Fourth Amended Complaint without leave to amend 22 pursuant to 28 U.S.C. § 1915A(b)(1), (2), Fed. R. Civ. P. 8(a)(2), and for failure to comply with court orders) Doc. No. 31, report and recommendation 23 adopted, No. 2:21-cv-01896-KJM-CKD P, 2023 WL 5534158 (E.D. Cal. 24 Aug. 28, 2023) Doc. No. 36 (strike one);2 25

26 2 This case counts as a strike because the dismissal was based on Plaintiff’s failures to state any 27 cognizable claims for relief and “repeated violation[s] of Rule 8(a).” Calderon v. Covello, No. 2:23-CV- 2049 WBS CSK P, 2024 WL 3296572, at *2 (E.D. Cal. June 25, 2024) (citing Knapp v. Hogan, 738 F.3d 28 1 (2) Calderon v. Covello, No. 2:23-cv-01973-JDP PC, 2023 WL 8358588, at *2 (E.D. Cal. Dec. 1, 2023) (Order and F&Rs to dismiss complaint without 2 leave to amend for failure to state a viable claim under section 1983 pursuant 3 to 28 U.S.C. § 1915A(b)) Doc. No. 15, report and recommendation adopted, No. 2:23-cv-01973-WBS-JDP PC, 2024 WL 53784 (E.D. Cal. Jan. 4, 2024) 4 Doc. No. 16 (strike two); 5 (3) Calderon v. Bonta, No. 2:23-cv-1065-DJC-DMC P, 2023 WL 8436101, 6 at *2 (E.D. Cal. Dec. 5, 2023) (F&Rs to dismiss complaint for failure to state 7 a claim pursuant to 28 U.S.C. § 1915A(b)) Doc. No. 23, report and recommendation adopted, No. 2:23- cv-1065 DJC DMC P, 2024 WL 643412 8 (E.D. Cal. Feb. 15, 2024) Doc. No. 26 (strike three); 9 (3) Calderon v. Bonta, No. 2:23- cv-00212 KJM EFB PC, 2023 WL 4936700, 10 at *2 (E.D. Cal. Aug. 2, 2023) (F&Rs to dismiss amended complaint for 11 failure to state a claim pursuant to 28 U.S.C. § 1915A(b)) Doc. No. 17, report and recommendation adopted, No. 2:23-cv-00212-KJM-EFB (PC), 2024 WL 12 1313053 (E.D. Cal. Mar. 26, 2024) Doc. No. 32 (strike four); 13 (5) Calderon v. Covello, No. 2:23- cv-1974 DB P, 2023 WL 8092432, at *3 14 (E.D. Cal. Nov. 21, 2023) (Order and F&Rs to dismiss without leave to amend for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)) Doc. No. 26, 15 amended report and recommendation adopted, No. 2:23-cv-1974 DJC DB P, 16 2024 WL 1383658 (E.D. Cal. Apr. 1, 2024) Doc. No. 29 (strike five); and 17 (6) Calderon v. Bonta, No. 23-2515, 2025 WL 2744678, at *1 (9th Cir. May 18 21, 2025) (dismissing appeal as frivolous pursuant to 28 U.S.C. § 1915(a), (e)(2)) (strike six). 19 20 Accordingly, because Plaintiff accumulated these prior qualifying strike dismissals 21 while incarcerated, and as discussed below, fails to make a “plausible allegation” that he 22 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 23 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 24 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 25 26 27 are strikes as “fail[ures] to state claim” when the opportunity to correct the pleading has been afforded and there has been no modification within a reasonable time), report and recommendation adopted, No. 28 1 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 2 prisoners with a history of abusing the legal system from continuing to abuse it while 3 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 4 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).3 5 C. Imminent Danger Exception 6 As noted above, once a prisoner has accumulated three or more strikes, § 1915(g) 7 prohibits his pursuit of any subsequent IFP civil action or appeal in federal court unless he 8 faces “imminent danger of serious physical injury.” See Cervantes, 493 F.3d at 1055. But 9 § 1915(g)’s “imminent danger” exception cannot be triggered solely by complaints of past 10 harm or generalized fears of potential harm. Id. at 1053 (“The exception’s use of the present 11 tense, combined with its concern only with the initial act of ‘bring(ing)’ the lawsuit, 12 indicates to us that the exception applies if the danger existed at the time the prisoner filed 13 the complaint.”). A prisoner fails to meet the exception where claims of imminent danger 14 are speculative, implausible, or conclusory. Id. at 1057 n.11. Rather, the “threat or prison 15 condition (must be) real and proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 16 2003) (quoting Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations 17 must be specific and credible, Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). 18 Plaintiff’s pleading fails to meet any of these requirements. While Plaintiff makes 19 vague references to his ill health, which he states puts him at risk for infections, his 20 allegations are merely speculatory. He also references a past assault in prison which 21 occurred in 2021, but this is insufficient to show “imminent danger.” “Although prison can 22 undoubtedly be a dangerous place, incarceration alone does not satisfy the requirement of 23

24 25 3 In fact, Plaintiff has been denied IFP privileges pursuant to § 1915(g) in both this Court and in the Eastern District of California before. See Calderon v. Mencias, No. 25-cv-03394-BTM-SBC, 2026 WL 26 473255, at *3 (S.D. Cal. Feb. 19, 2026) (Order denying leave to proceed IFP as barred by 28 U.S.C. § 1915(g)) Doc. No. 5; Calderon v. Covello, No. 2:24-cv-1309 CKD P, 2024 WL 4462335, at *2 (E.D. 27 Cal. Sept. 4, 2024) (Order and F&Rs to deny leave to proceed IFP pursuant to 28 U.S.C. § 1915(g)) Doc. No. 7, report and recommendation adopted, No. 2:24-cv-1309 DJC CKD P, 2024 WL 4574119 (E.D. Cal. 28 | |} ‘imminent danger of serious physical injury’ for purposes of § 1915(g). Indeed, if it did, 2 every prisoner would be entitled to IFP status and the exception would swallow the rule.” 3 || Parker v. Montgomery Cnty. Corr. Facility/Bus. Off. Manager, 870 F.3d 144, 154 □□□□ Gd 4 || Cir. 2017). 5 Accordingly, because Plaintiff has, while incarcerated, accumulated more than three 6 || “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 7 |}imminent danger of serious physical injury at the time he filed his Complaint, he is not 8 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 9 || Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 10 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 11 legal system from continuing to abuse it while enjoying IFP status”); see also Franklin, 12 || 745 F.2d at 1231 (stating that “court permission to proceed in forma pauperis is itself a 13 || matter of privilege and not right.”). 14 CONCLUSION 15 For the reasons explained, the Court DENIES his IFP motion; DISMISSES this 16 |/civil action sua sponte without prejudice for failing to prepay the $405 civil and 17 administrative filing fees required by 28 U.S.C. § 1914(a); and CERTIFIES that any IFP 18 || appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 19 DIRECTS the Clerk of the Court to close the file. 20 IT IS SO ORDERED. 21 ||Dated: May 4, 2026 © ¢ 22 Hon, Anthony J.Battaglia 23 United States District Judge 24 25 26 27 28 6 a oe