1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY OLIVER, Case No.: 21-CV-1590 TWR (AGS) GDC ID: 1002060648, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL ACTION 14 WITHOUT PREJUDICE FOR
15 FAILURE TO PAY FILING FEE SCRAM OF CALIFORNIA, INC. and 16 DOES 1–10, inclusive, (ECF Nos 1, 2) 17 Defendants. 18 19 20 On September 7, 2021, Plaintiff Anthony Oliver, currently incarcerated at the 21 Wilcox State Prison in Abbeville, Georgia, filed a civil rights Complaint pursuant to 42 22 U.S.C. § 1983, (ECF No. 1 (“Compl.”)), and a Motion to Proceed in Forma Pauperis 23 (“IFP”). (ECF No. 2 (“Mot.”).) He alleges that Defendant SCRAM of California, Inc. 24 (“SCRAM”), a California corporation, has engaged in racketeering activity, has perpetrated 25 an unlawful taking in violation of the Fifth Amendment, and has defrauded him. (See 26 generally Compl.) 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 6 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 7 [I]f [a] prisoner 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 8 States that was dismissed on the grounds that it is frivolous, malicious, or fails 9 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 10
11 28 U.S.C. § 1915(g). 12 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 13 before and after the statute’s effective date.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th 14 Cir. 1997). “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 15 which were dismissed on the ground that they were frivolous, malicious, or failed to state 16 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations and brackets omitted), “even 17 if the district court styles such dismissal as a denial of the prisoner’s application to file the 18 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 19 (9th Cir. 2008). To constitute a strike, a dismissal must be based on one of the enumerated 20 grounds contained in 28 U.S.C. § 1915(g). El-Shaddai v. Zamora, 833 F.3d 1036, 1042 21 (9th Cir. 2016) (citing 28 U.S.C. § 1915(g) (enumerating grounds as “dismissed on the 22 grounds it is frivolous, malicious, or fails to state a claim upon which relief may be 23 granted”)). “In other words, ‘(w)hen we are presented with multiple claims within a single 24 action, we assess a PRLA strike only when the “case as a whole” is dismissed for a 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52, which does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial 28 1 qualifying reason.’” Harris v. Harris, 935 F.3d 670, 674 (9th Cir. 2019) (quoting 2 Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016) (quoting 3 Cervantes, 493 F.3d at 1054)). A prisoner who has accumulated three strikes is prohibited 4 by § 1915(g) from pursuing any other IFP action in federal court unless he can show he is 5 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 6 493 F.3d at 1051–52. 7 Based on the dockets of court proceedings available on PACER,2 the Court finds 8 that Plaintiff Anthony Oliver has had at least three prior prisoner civil actions dismissed on 9 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief 10 may be granted. They are: 11 1. Order, Oliver v. Reays Ranch Investors, et al., No. 4:10-cv-00158- JMR-PSOT (D. Ariz. Mar. 15, 2010), ECF No. 22 (dismissing 12 complaint for failing to state a claim and stating the dismissal 13 constitutes a “strike” under 28 U.S.C. § 1915(g));
14 2. Order, Oliver v. Sloane, et al., No. 4:10-cv-00169-JMR-PSOT (D. Ariz. 15 Mar. 24, 2010), ECF No. 17 (dismissing complaint for failing to state a claim and stating the dismissal constitutes a “strike” under 28 U.S.C. 16 § 1915(g)); and 17 3. Order, Oliver v. Monson, et al., No. 0:10-cv-04218-ADM-JJG (D. 18 Minn. Oct. 13, 2010), ECF No. 8 (adopting R&R and dismissing 19 complaint on grounds it was frivolous, malicious, or fails to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)). 20 21 In addition, district courts in both the Northern and Southern District of Georgia 22 have found that Oliver has accumulated three strikes and have dismissed his cases pursuant 23 to 28 U.S.C. § 1915(g). See Order, Oliver v. Kemp, No. 1:19-cv-05014-TCB (N.D. Ga. 24 Dec. 11, 2019), ECF No. 6 (adopting recommendation of magistrate judge to dismiss case 25 26 27 2 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 28 1 pursuant to § 1915(g); Order, Oliver v. Chatham Cty., et al., No. 4:21-cv-00130-CLR (S.D. 2 Ga. Sept. 10, 2021), ECF No. 18 (denying motion to suspend contempt bond and 3 dismissing case pursuant to § 1915(g)). Oliver also has been found to be a vexatious 4 litigant in the Southern District of Georgia, where he is subject to a prefiling review order 5 and must post a $1,000 contempt bond before he may file any new civil action, see Order, 6 Oliver v. Chatham Cty., et al., No. 4:21-cv-00130-CLR (S.D. Ga. Apr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY OLIVER, Case No.: 21-CV-1590 TWR (AGS) GDC ID: 1002060648, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL ACTION 14 WITHOUT PREJUDICE FOR
15 FAILURE TO PAY FILING FEE SCRAM OF CALIFORNIA, INC. and 16 DOES 1–10, inclusive, (ECF Nos 1, 2) 17 Defendants. 18 19 20 On September 7, 2021, Plaintiff Anthony Oliver, currently incarcerated at the 21 Wilcox State Prison in Abbeville, Georgia, filed a civil rights Complaint pursuant to 42 22 U.S.C. § 1983, (ECF No. 1 (“Compl.”)), and a Motion to Proceed in Forma Pauperis 23 (“IFP”). (ECF No. 2 (“Mot.”).) He alleges that Defendant SCRAM of California, Inc. 24 (“SCRAM”), a California corporation, has engaged in racketeering activity, has perpetrated 25 an unlawful taking in violation of the Fifth Amendment, and has defrauded him. (See 26 generally Compl.) 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 5 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 6 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 7 [I]f [a] prisoner 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 8 States that was dismissed on the grounds that it is frivolous, malicious, or fails 9 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 10
11 28 U.S.C. § 1915(g). 12 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 13 before and after the statute’s effective date.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th 14 Cir. 1997). “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 15 which were dismissed on the ground that they were frivolous, malicious, or failed to state 16 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations and brackets omitted), “even 17 if the district court styles such dismissal as a denial of the prisoner’s application to file the 18 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 19 (9th Cir. 2008). To constitute a strike, a dismissal must be based on one of the enumerated 20 grounds contained in 28 U.S.C. § 1915(g). El-Shaddai v. Zamora, 833 F.3d 1036, 1042 21 (9th Cir. 2016) (citing 28 U.S.C. § 1915(g) (enumerating grounds as “dismissed on the 22 grounds it is frivolous, malicious, or fails to state a claim upon which relief may be 23 granted”)). “In other words, ‘(w)hen we are presented with multiple claims within a single 24 action, we assess a PRLA strike only when the “case as a whole” is dismissed for a 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52, which does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial 28 1 qualifying reason.’” Harris v. Harris, 935 F.3d 670, 674 (9th Cir. 2019) (quoting 2 Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016) (quoting 3 Cervantes, 493 F.3d at 1054)). A prisoner who has accumulated three strikes is prohibited 4 by § 1915(g) from pursuing any other IFP action in federal court unless he can show he is 5 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 6 493 F.3d at 1051–52. 7 Based on the dockets of court proceedings available on PACER,2 the Court finds 8 that Plaintiff Anthony Oliver has had at least three prior prisoner civil actions dismissed on 9 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief 10 may be granted. They are: 11 1. Order, Oliver v. Reays Ranch Investors, et al., No. 4:10-cv-00158- JMR-PSOT (D. Ariz. Mar. 15, 2010), ECF No. 22 (dismissing 12 complaint for failing to state a claim and stating the dismissal 13 constitutes a “strike” under 28 U.S.C. § 1915(g));
14 2. Order, Oliver v. Sloane, et al., No. 4:10-cv-00169-JMR-PSOT (D. Ariz. 15 Mar. 24, 2010), ECF No. 17 (dismissing complaint for failing to state a claim and stating the dismissal constitutes a “strike” under 28 U.S.C. 16 § 1915(g)); and 17 3. Order, Oliver v. Monson, et al., No. 0:10-cv-04218-ADM-JJG (D. 18 Minn. Oct. 13, 2010), ECF No. 8 (adopting R&R and dismissing 19 complaint on grounds it was frivolous, malicious, or fails to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)). 20 21 In addition, district courts in both the Northern and Southern District of Georgia 22 have found that Oliver has accumulated three strikes and have dismissed his cases pursuant 23 to 28 U.S.C. § 1915(g). See Order, Oliver v. Kemp, No. 1:19-cv-05014-TCB (N.D. Ga. 24 Dec. 11, 2019), ECF No. 6 (adopting recommendation of magistrate judge to dismiss case 25 26 27 2 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 28 1 pursuant to § 1915(g); Order, Oliver v. Chatham Cty., et al., No. 4:21-cv-00130-CLR (S.D. 2 Ga. Sept. 10, 2021), ECF No. 18 (denying motion to suspend contempt bond and 3 dismissing case pursuant to § 1915(g)). Oliver also has been found to be a vexatious 4 litigant in the Southern District of Georgia, where he is subject to a prefiling review order 5 and must post a $1,000 contempt bond before he may file any new civil action, see Order, 6 Oliver v. Chatham Cty., et al., No. 4:21-cv-00130-CLR (S.D. Ga. Apr. 27, 2021), ECF No. 7 18, and in the Central District of California. See Order, Oliver v. Luner, et al., No. 2:18- 8 cv-02562-VAP-AFM (C.D. Cal. Mar. 18, 2018), ECF No. 99. 9 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 10 “strikes” as defined by Section 1915(g), to be entitled to proceed IFP in this action he must 11 make a “plausible allegation” that he faced imminent danger of serious physical injury at 12 the time he filed his Complaint. See Cervantes, 493 F.3d at 1055. Oliver alleges in his 13 Complaint that in February of 2016, he was arrested at the U.S./Mexico border for driving 14 under the influence. (Compl. at 4.) He posted bond and, as part of his conditions of release, 15 he was required to enroll in an alcohol monitoring program with a company named 16 SCRAM. (Id.) He was required to pay a $325.00 enrollment fee and a bi-weekly fee of 17 $225.00 to SCRAM for this service. (Id.) On April 4, 2016, SCRAM reported to the San 18 Diego County Superior Court that Oliver had consumed alcohol in violation of his 19 conditions of release, and the San Diego Superior Court issued an arrest warrant. (Id. at 20 4–5.) Oliver contends SCRAM’s report was false, and he filed a lawsuit against SCRAM. 21 (Id. at 5–6.) According to Oliver, SCRAM then told Oliver to “cut off the SCRAM device, 22 ankle monitor, and all of its accessories and mail the equipment back to the SCRAM 23 office,” which Oliver did. (Id. at 6.) SCRAM allegedly told Oliver he was no longer 24 enrolled in the SCRAM program and that SCRAM would no longer charge Oliver the bi- 25 weekly fee. (Id.) Oliver alleges that SCRAM nevertheless continued to deduct money from 26 his bank accounts and credit cards. (Id. at 6–12.) 27 To qualify for Section 1915(g)’s imminent danger exception, the danger Plaintiff 28 alleges he faces must be real, proximate, and/or ongoing at the time he filed his Complaint. 1 || Cervantes, 493 F.3d at 1056. Oliver’s Complaint does not contain a “plausible allegation” 2 ||to suggest he “faced ‘imminent danger of serious physical injury’ at the time of filing.” 3 || Cervantes, 493 F.3d at 1055, quoting 28 U.S.C. § 1915(g). Accordingly, the Court 4 DENIES Plaintiff's Motion to proceed IFP. Plaintiff may proceed with this action after 5 paying the filing fee. See Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. Section 6 || 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 7 || prisoners with a history of abusing the legal system from continuing to abuse it while 8 || enjoying IFP status”); see also Weller v. Dixon, 314 F.2d 598, 600 (9th Cir. 1963) (holding 9 permission to proceed IFP is a privilege within the discretion of the court). 10 CONCLUSION 11 For the reasons set forth above, the Court (1) DENIES Plaintiff's Motion to Proceed 12 || IFP (ECF No. 2) as barred by 28 U.S.C. Section 1915(g); and (2) DISMISSES Plaintiff's 13 ||Complaint for failure to satisfy the filing fee requirement. Unless Plaintiff pays the full 14 || civil filing fee within forty-five (45) days of the date this Order is filed, the Court will enter 15 final judgment of dismissal. 16 IT IS SO ORDERED. 17 18 ||Dated: September 16, 2021 —_—_— 19 | 99> (2 re 0 Honorable Todd W. Robinson United States District Court
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