1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No. 3:22-cv-0564-LAB-MDD Booking #14745493, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 [Dkt. 2]
15 WILLIAM GORE, et al., AND 16 Defendants. 17 DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff Pedro Rodriguez, a former state prisoner who is currently detained at the 22 San Diego Central Jail (“SDCJ”) is proceeding pro se and has filed a civil rights Complaint 23 (“Compl.”) pursuant to 42 U.S.C. § 1983. See Compl. ECF No. 1. Rodriguez did not prepay 24 the civil filing fee required to commence a civil action at the time he filed his Complaint; 25 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 26 § 1915(a). See ECF No. 2. 27 Rodriguez seeks to sue former San Diego County Sheriff William Gore, the County 28 of San Diego itself, and a correctional officer at the George Bailey Detention Facility 1 (“GBDF”) for violating his Eighth Amendment rights. See Compl. at 4-14. He seeks a 2 declaratory judgment and $1 million in compensatory damages. Id. at 10-11. 3 I. Motion to Proceed IFP 4 A. Standard of Review 5 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 6 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Rodriguez, however, 7 “face an additional hurdle.” Id. 8 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 9 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 10 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 11 proceed IFP in cases where the prisoner: 12 . . . 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 13 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 14 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 15 16 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 17 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 18 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 19 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 20 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 21 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 22 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 23 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 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 failed to state a claim,” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 27 styles such dismissal as a denial of the prisoner’s application to file the action without 28 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 1 When courts “review a dismissal to determine whether it counts as a strike, the style of the 2 dismissal or the procedural posture is immaterial. Instead, the central question is whether 3 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 4 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 5 F.3d 607, 615 (4th Cir. 2013)). 6 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 7 of any subsequent IFP civil action or appeal in federal court unless she faces “imminent 8 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 9 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 11 B. Discussion 12 Rodriguez’s Complaint alleges that the events that give rise to this action occurred 13 at the GBDF in which he generally claims he was “injured” by a correctional officer 14 assigned to GBDF. See Compl. at 4. However, at the time Plaintiff filed this action he was 15 housed at a different facility, the SDCJ. See id. at 1. Therefore, Plaintiff does not allege 16 that, at the time he filed the action, he was in “imminent danger of serious physical injury 17 that is both fairly traceable to unlawful conduct alleged in his complaint and redressable 18 by the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). 19 Defendants typically carry the initial burden to produce evidence demonstrating a 20 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances, 21 the district court docket may be sufficient to show that a prior dismissal satisfies at least 22 one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. The Court 23 takes judicial notice of federal court docket proceedings available on PACER1 and finds 24 25 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 26 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 27 States v. Author Services, 804 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 28 1 that Plaintiff Pedro Rodriguez, currently identified under Booking No. 14745493, and 2 previously identified as CDCR Inmate #BC-6583, while incarcerated, has had five prior 3 prisoner civil actions or appeals dismissed on the grounds that they were frivolous, 4 malicious, or failed to state a claim upon which relief may be granted. 5 They are: 6 (1) Rodriguez v. Robinson, et al., Civil Case No. 3:14-cv-02770-LAB- WVG (S.D. Cal. Jan. 16, 2015) (Order Granting Motion to Proceed IFP and 7 Dismissing Complaint for failing to state a claim) (ECF No. 4) (strike one); 8 (2) Rodriguez v. Mitchell, et al., Civil Case No. 3:14-cv-02708-GPC-WVG 9 (S.D. Cal. Feb. 18, 2015) (Order granting Motion to Proceed IFP and 10 Dismissing Complaint for failing to state a claim) (ECF No. 4) (strike two); 11 (3) Rodriguez v. Stall, et al., Civil Case No. 3:14-cv-02646-LAB-DHB (S.D. Cal. Apr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No. 3:22-cv-0564-LAB-MDD Booking #14745493, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 [Dkt. 2]
15 WILLIAM GORE, et al., AND 16 Defendants. 17 DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff Pedro Rodriguez, a former state prisoner who is currently detained at the 22 San Diego Central Jail (“SDCJ”) is proceeding pro se and has filed a civil rights Complaint 23 (“Compl.”) pursuant to 42 U.S.C. § 1983. See Compl. ECF No. 1. Rodriguez did not prepay 24 the civil filing fee required to commence a civil action at the time he filed his Complaint; 25 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 26 § 1915(a). See ECF No. 2. 27 Rodriguez seeks to sue former San Diego County Sheriff William Gore, the County 28 of San Diego itself, and a correctional officer at the George Bailey Detention Facility 1 (“GBDF”) for violating his Eighth Amendment rights. See Compl. at 4-14. He seeks a 2 declaratory judgment and $1 million in compensatory damages. Id. at 10-11. 3 I. Motion to Proceed IFP 4 A. Standard of Review 5 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 6 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Rodriguez, however, 7 “face an additional hurdle.” Id. 8 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 9 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 10 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 11 proceed IFP in cases where the prisoner: 12 . . . 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 13 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 14 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 15 16 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 17 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 18 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 19 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 20 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 21 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 22 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 23 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 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 failed to state a claim,” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 27 styles such dismissal as a denial of the prisoner’s application to file the action without 28 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 1 When courts “review a dismissal to determine whether it counts as a strike, the style of the 2 dismissal or the procedural posture is immaterial. Instead, the central question is whether 3 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 4 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 5 F.3d 607, 615 (4th Cir. 2013)). 6 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 7 of any subsequent IFP civil action or appeal in federal court unless she faces “imminent 8 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 9 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 11 B. Discussion 12 Rodriguez’s Complaint alleges that the events that give rise to this action occurred 13 at the GBDF in which he generally claims he was “injured” by a correctional officer 14 assigned to GBDF. See Compl. at 4. However, at the time Plaintiff filed this action he was 15 housed at a different facility, the SDCJ. See id. at 1. Therefore, Plaintiff does not allege 16 that, at the time he filed the action, he was in “imminent danger of serious physical injury 17 that is both fairly traceable to unlawful conduct alleged in his complaint and redressable 18 by the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). 19 Defendants typically carry the initial burden to produce evidence demonstrating a 20 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances, 21 the district court docket may be sufficient to show that a prior dismissal satisfies at least 22 one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. The Court 23 takes judicial notice of federal court docket proceedings available on PACER1 and finds 24 25 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 26 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 27 States v. Author Services, 804 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 28 1 that Plaintiff Pedro Rodriguez, currently identified under Booking No. 14745493, and 2 previously identified as CDCR Inmate #BC-6583, while incarcerated, has had five prior 3 prisoner civil actions or appeals dismissed on the grounds that they were frivolous, 4 malicious, or failed to state a claim upon which relief may be granted. 5 They are: 6 (1) Rodriguez v. Robinson, et al., Civil Case No. 3:14-cv-02770-LAB- WVG (S.D. Cal. Jan. 16, 2015) (Order Granting Motion to Proceed IFP and 7 Dismissing Complaint for failing to state a claim) (ECF No. 4) (strike one); 8 (2) Rodriguez v. Mitchell, et al., Civil Case No. 3:14-cv-02708-GPC-WVG 9 (S.D. Cal. Feb. 18, 2015) (Order granting Motion to Proceed IFP and 10 Dismissing Complaint for failing to state a claim) (ECF No. 4) (strike two); 11 (3) Rodriguez v. Stall, et al., Civil Case No. 3:14-cv-02646-LAB-DHB (S.D. Cal. Apr. 23, 2015) (Order Dismissing First Amended Complaint for 12 failing to state a claim) (ECF No. 11) (strike three); 13 (4) Rodriguez v. Greco, et al., Civil Case No. 3:15-cv-02040-DMS-JLB 14 (S.D. Cal. Jan. 15, 2016) (Order Dismissing Second Amended Complaint for 15 failing to state a claim) (ECF No. 13) (strike four); and 16 (5) Rodriguez v. Pierce, et al., Appeal No. 16-55150 (9th Cir. July 19, 2016) (Order denying IFP on appeal based on frivolousness) (Dkt. No. 14); 17 (9th Cir. Aug. 25, 2016) (Order dismissing appeal for failing to perfect 18 appeal) (Dkt. No. 16) (strike five). 2 19 Because Rodriguez has accumulated more than three “strikes” while incarcerated 20 21
22 23 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. 24 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 25 971 F.2d 244, 248 (9th Cir. 1992).
26 2 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s 27 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 later when the 28 1 || pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced imminent 2 || danger of serious physical injury at the time he filed his Complaint, he is not entitled to the 3 || privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez 4 ||v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not 5 || prevent all prisoners from accessing the courts; it only precludes prisoners with a history 6 ||of abusing the legal system from continuing to abuse it while enjoying IFP status’); see 7 \|also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to 8 || proceed IFP is itself a matter of privilege and not right.”’). 9 Conclusion and Order 10 For the reasons set forth above, the Court: 11 (1) DENIES Rodriguez’s Motion to Proceed IFP (ECF No. 2) as barred by 28 12 ||U.S.C. § 1915(g); 13 (2) DISMISSES this civil action without prejudice based on Rodriguez’s failure 14 pay the full statutory and administrative $402 civil filing fee required by 28 U.S.C. 15 § 1914(a); 16 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 17 || to pay the entire $402 civil filing and administrative fee in full. If Plaintiff fails to either 18 || prepay the $402 civil filing fee, this action will be dismissed without prejudice based on 19 ||his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements.* 20 IT IS SO ORDERED. 21 ||Dated: May 13, 2022 (a0 / A. (Boy □□ 22 Hon. Larry Alan Burns 3 United States District Judge
25 ||> Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full 6 $402 civil filing fee, his Complaint will be screened before service and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b), regardless of whether he pays the full $402 27 || filing fee. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar 28 screening required by 28 U.S.C. § L915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental entity.”’).