1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERDINAND REYNOLDS, Case No.: 24-cv-1692-RSH-DEB CDCR #D-11772, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 AS BARRED BY 28 U.S.C. § 1915(g) VINCENT MCSEE, Litigation [ECF No. 2] 16 Coordinator, 17 Defendant. AND
18 (2) DISMISSING CIVIL ACTION 19 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 20 REQUIRED BY 28 U.S.C. § 1914(a) 21 22 23 Plaintiff Ferdinand Reynolds, a state prisoner incarcerated at the Richard J. Donovan 24 Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights action under 25 42 U.S.C. §1983. ECF No. 1. Plaintiff claims Defendant refused to allow him to appear at 26 a small claims court hearing via video rather than telephonically as needed to accommodate 27 his hearing disability. ECF No. 1 at 4-6. Plaintiff has also filed a Motion to Proceed In 28 Forma Pauperis (“IFP”). ECF No. 2. 1 I. Motion to Proceed IFP 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 3 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 4 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 5 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 6 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 7 preclude the privilege to proceed IFP in cases where the prisoner: 8 . . . 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 9 that was dismissed on the grounds that it is frivolous, malicious, or fails 10 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 11 12 28 U.S.C. § 1915(g). 13 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. 14 King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Once a prisoner has accumulated three 15 strikes, he is prohibited by § 1915(g) from pursuing any other IFP action in federal court 16 unless he can show he is facing “imminent danger of serious physical injury.” See 28 17 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s exception for IFP 18 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger 19 of serious physical injury’ at the time of filing.”). “Strikes are prior cases or appeals, 20 brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they 21 were] frivolous, malicious, or fail[ed] to state a claim,’” Andrews, 398 F.3d at 1116 n.1, 22 “even if the district court styles such dismissal as a denial of the prisoner’s application to 23 file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 24 1153 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 25 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central 26 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 27 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 28 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 1 While Defendants typically carry the initial burden to produce evidence 2 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 3 court docket may be sufficient to show that a prior dismissal satisfies at least one of the 4 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That 5 is the case here. A court may take judicial notice of its own records, see Molus v. Swan, 6 No. 05cv00452-MMA (WMC), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 7 United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)), and “‘may take notice 8 of proceedings in other courts, both within and without the federal judicial system, if those 9 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 10 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 11 2002)). 12 Based on a review of its own docket and other court proceedings available on 13 PACER, the Court finds that, while incarcerated, plaintiff Ferdinand Reynolds, identified 14 as CDCR Inmate #D-11772, has had at least three prior civil actions dismissed on the 15 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 16 may be granted. They are: 17 (1) Reynolds v. Garcia, et al., Ninth Circuit Appeal No. 04-56808 (Feb. 15, 2005 Order denying appellant’s motion to proceed IFP because appeal is 18 frivolous) [Dkt. Entry 5]; (April 1, 2005 order dismissing appeal for failure to 19 prosecute) [Dkt. Entry 8] (strike one)1;
20 (2) Reynolds v. Director of Corrections, Civil Case No. 5:06-cv-01604-JF 21 (N.D. Cal. Nov. 17, 2008) (order dismissing action for failure to state a cognizable claim for relief) (strike two)2; 22 23 24 1 See Richey v. Dunn, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate 25 court’s denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted a “strike” under § 1915(g) “even though [it] did not dismiss the appeal until 26 later when the [appellate] did not pay the filing fee”). 27 2 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district 28 1 (3) Reynolds v. Major, et al., Civil Case No. 3:10-cv-05917-CRB (N.D. Cal. Nov. 17, 2011) (order of dismissal for failing to state a claim) (strike three). 2
3 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 4 “strikes” as defined by § 1915(g), he is not entitled to proceed IFP in this action unless he 5 makes a “plausible allegation” that he faced imminent danger of serious physical injury at 6 the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 7 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the 8 courts; it only precludes prisoners with a history of abusing the legal system from 9 continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 10 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of 11 privilege and not right.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERDINAND REYNOLDS, Case No.: 24-cv-1692-RSH-DEB CDCR #D-11772, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 AS BARRED BY 28 U.S.C. § 1915(g) VINCENT MCSEE, Litigation [ECF No. 2] 16 Coordinator, 17 Defendant. AND
18 (2) DISMISSING CIVIL ACTION 19 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 20 REQUIRED BY 28 U.S.C. § 1914(a) 21 22 23 Plaintiff Ferdinand Reynolds, a state prisoner incarcerated at the Richard J. Donovan 24 Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights action under 25 42 U.S.C. §1983. ECF No. 1. Plaintiff claims Defendant refused to allow him to appear at 26 a small claims court hearing via video rather than telephonically as needed to accommodate 27 his hearing disability. ECF No. 1 at 4-6. Plaintiff has also filed a Motion to Proceed In 28 Forma Pauperis (“IFP”). ECF No. 2. 1 I. Motion to Proceed IFP 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 3 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 4 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 5 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 6 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 7 preclude the privilege to proceed IFP in cases where the prisoner: 8 . . . 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 9 that was dismissed on the grounds that it is frivolous, malicious, or fails 10 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 11 12 28 U.S.C. § 1915(g). 13 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. 14 King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Once a prisoner has accumulated three 15 strikes, he is prohibited by § 1915(g) from pursuing any other IFP action in federal court 16 unless he can show he is facing “imminent danger of serious physical injury.” See 28 17 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s exception for IFP 18 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger 19 of serious physical injury’ at the time of filing.”). “Strikes are prior cases or appeals, 20 brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they 21 were] frivolous, malicious, or fail[ed] to state a claim,’” Andrews, 398 F.3d at 1116 n.1, 22 “even if the district court styles such dismissal as a denial of the prisoner’s application to 23 file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 24 1153 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 25 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central 26 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 27 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 28 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 1 While Defendants typically carry the initial burden to produce evidence 2 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 3 court docket may be sufficient to show that a prior dismissal satisfies at least one of the 4 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That 5 is the case here. A court may take judicial notice of its own records, see Molus v. Swan, 6 No. 05cv00452-MMA (WMC), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 7 United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)), and “‘may take notice 8 of proceedings in other courts, both within and without the federal judicial system, if those 9 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 10 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 11 2002)). 12 Based on a review of its own docket and other court proceedings available on 13 PACER, the Court finds that, while incarcerated, plaintiff Ferdinand Reynolds, identified 14 as CDCR Inmate #D-11772, has had at least three prior civil actions dismissed on the 15 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 16 may be granted. They are: 17 (1) Reynolds v. Garcia, et al., Ninth Circuit Appeal No. 04-56808 (Feb. 15, 2005 Order denying appellant’s motion to proceed IFP because appeal is 18 frivolous) [Dkt. Entry 5]; (April 1, 2005 order dismissing appeal for failure to 19 prosecute) [Dkt. Entry 8] (strike one)1;
20 (2) Reynolds v. Director of Corrections, Civil Case No. 5:06-cv-01604-JF 21 (N.D. Cal. Nov. 17, 2008) (order dismissing action for failure to state a cognizable claim for relief) (strike two)2; 22 23 24 1 See Richey v. Dunn, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate 25 court’s denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted a “strike” under § 1915(g) “even though [it] did not dismiss the appeal until 26 later when the [appellate] did not pay the filing fee”). 27 2 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district 28 1 (3) Reynolds v. Major, et al., Civil Case No. 3:10-cv-05917-CRB (N.D. Cal. Nov. 17, 2011) (order of dismissal for failing to state a claim) (strike three). 2
3 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 4 “strikes” as defined by § 1915(g), he is not entitled to proceed IFP in this action unless he 5 makes a “plausible allegation” that he faced imminent danger of serious physical injury at 6 the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 7 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the 8 courts; it only precludes prisoners with a history of abusing the legal system from 9 continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 10 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of 11 privilege and not right.”). 12 Plaintiff does not meet the “imminent danger of serious physical injury” exception 13 under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 14 to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 15 1047, 1056 (9th Cir. 2007). It “cannot be triggered solely by complaints of past injury or 16 generalized fears of possible future harm.” Hernandez v. Williams, No. 21-cv-347-MMA- 17 KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021). In this action Plaintiff seeks 18 damages for Defendant’s refusal to allow him to appear at a small claims court hearing via 19 video rather than telephonically in order to lip read as needed to accommodate his hearing 20 disability. ECF No. 1 at 4-6. It is clear Plaintiff has not satisfied the imminent danger of 21 serious physical injury requirement in order to proceed IFP in this case. 22 II. Conclusion and Orders 23 For the reasons set forth above, the Court: 24 1. DENIES Plaintiff’s Motion to Proceed IFP [ECF No. 2], as barred by 28 25 U.S.C. § 1915(g); 26 27 grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the 28 l 2. DISMISSES this civil action without prejudice based on Plaintiffs failure to 2 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 3 3. CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 4 ||to 28 U.S.C. § 1915(a)(3); and 5 4. DIRECTS the Clerk of the Court to close the file. 6 IT IS SO ORDERED. febut C Place 7 || Dated: October 25, 2024 8 Hon.RobertS.Huie — 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28