1 2 3 4 5 6 7 10 11 TIMOTHY D. WILKINS, Case No. 26-cv-1538-BAS-MSB
12 ORDER: Plaintiff, 13 1. DENYING MOTION TO v. PROCEED IN FORMA 14 PAUPERIS, 28 U.S.C. § 1915(g)
15 (ECF No. 2); AND VARGAS, Correctional Officer; 2. DISMISSING CIVIL ACTION 16 GOMEZ, Correctional Officer; WITHOUT PREJUDICE FOR 17 GAMARENA, Correctional Officer, FAILURE TO PAY FILING FEE, 28 U.S.C. § 1914(a) 18 Defendants. 19 20 21 Plaintiff, Timothy D. Wilkins (“Wilkins” or “Plaintiff”), currently in custody at 22 California State Prison, Los Angeles County and proceeding pro se, has filed a Complaint 23 and a Motion to Proceed In Forma Pauperis (“IFP”). (ECF Nos. 1, 2.) Wilkins alleges that 24 while he was confined at Centinela State Prison Defendants violated his Eighth 25 Amendment rights by failing to assign him to a bottom bunk and attempting to assign him 26 to share a cellmate “known for attacking cellmates.” (See ECF No. 1 at 3–4.) As discussed 27 below, the Court denies Plaintiff’s IFP motion and dismisses the case without prejudice. 28 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 5 $350.00, and those not granted leave to proceed IFP must pay an additional administrative 6 fee of $55.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 7 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a 8 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant 9 to 28 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, Andrews, 398 F.3d at 1119, but “in some instances, 8 the district court docket may be sufficient to show that a prior dismissal satisfies at least 9 one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. Upon 10 review of its own dockets and those of other federal courts, the Court finds that Plaintiff, 11 Timothy D. Wilkins, CDCR #T-35723, has had at least three prior civil actions and appeals 12 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 13 which relief may be granted. See Fed. R. Evid. 201(b)(2); Tiedemann v. von Blanckensee, 14 72 F.4th 1001, 1007 (9th Cir. 2023) (noting that courts may “‘take notice of proceedings 15 in other courts, both within and without the federal judicial system, if those proceedings 16 have a direct relation to matters at issue’” (citation omitted)). They include: 17 (1) Wilkins v. California, et al.., Case No. 19-cv-2048 VAP (E), ECF No. 13 (C.D. Cal. May 9, 2019) (Order adopting Findings and Recommendations 18 and dismissing action for failure to state a claim pursuant to 28 19 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1));
20 (2) Wilkins v. California, et al., Case No. 20-cv-0818-VAP (E), ECF No. 21 14 (C.D. Cal. Mar. 5, 2020) (Order adopting Findings and Recommendations dismissing civil action for failure to state a claim pursuant to 28 22 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)); and 23 (3) Wilkins v. Smith, et al., Case No. 25-cv-6426-HSG, ECF No. 11 (N.D. 24 Cal. Oct. 30, 2025), ECF No. 11 (Order dismissing action for failure to state 25 a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)). 26 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 27 “strikes” as defined by § 1915(g), he is not entitled to the privilege of proceeding IFP in 28 this action unless he makes a “plausible allegation” that he faced imminent danger of 1 serious physical injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; 2 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 3 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 4 the legal system from continuing to abuse it while enjoying IFP status”). 5 C.
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1 2 3 4 5 6 7 10 11 TIMOTHY D. WILKINS, Case No. 26-cv-1538-BAS-MSB
12 ORDER: Plaintiff, 13 1. DENYING MOTION TO v. PROCEED IN FORMA 14 PAUPERIS, 28 U.S.C. § 1915(g)
15 (ECF No. 2); AND VARGAS, Correctional Officer; 2. DISMISSING CIVIL ACTION 16 GOMEZ, Correctional Officer; WITHOUT PREJUDICE FOR 17 GAMARENA, Correctional Officer, FAILURE TO PAY FILING FEE, 28 U.S.C. § 1914(a) 18 Defendants. 19 20 21 Plaintiff, Timothy D. Wilkins (“Wilkins” or “Plaintiff”), currently in custody at 22 California State Prison, Los Angeles County and proceeding pro se, has filed a Complaint 23 and a Motion to Proceed In Forma Pauperis (“IFP”). (ECF Nos. 1, 2.) Wilkins alleges that 24 while he was confined at Centinela State Prison Defendants violated his Eighth 25 Amendment rights by failing to assign him to a bottom bunk and attempting to assign him 26 to share a cellmate “known for attacking cellmates.” (See ECF No. 1 at 3–4.) As discussed 27 below, the Court denies Plaintiff’s IFP motion and dismisses the case without prejudice. 28 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 5 $350.00, and those not granted leave to proceed IFP must pay an additional administrative 6 fee of $55.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 7 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a 8 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant 9 to 28 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, Andrews, 398 F.3d at 1119, but “in some instances, 8 the district court docket may be sufficient to show that a prior dismissal satisfies at least 9 one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. Upon 10 review of its own dockets and those of other federal courts, the Court finds that Plaintiff, 11 Timothy D. Wilkins, CDCR #T-35723, has had at least three prior civil actions and appeals 12 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 13 which relief may be granted. See Fed. R. Evid. 201(b)(2); Tiedemann v. von Blanckensee, 14 72 F.4th 1001, 1007 (9th Cir. 2023) (noting that courts may “‘take notice of proceedings 15 in other courts, both within and without the federal judicial system, if those proceedings 16 have a direct relation to matters at issue’” (citation omitted)). They include: 17 (1) Wilkins v. California, et al.., Case No. 19-cv-2048 VAP (E), ECF No. 13 (C.D. Cal. May 9, 2019) (Order adopting Findings and Recommendations 18 and dismissing action for failure to state a claim pursuant to 28 19 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1));
20 (2) Wilkins v. California, et al., Case No. 20-cv-0818-VAP (E), ECF No. 21 14 (C.D. Cal. Mar. 5, 2020) (Order adopting Findings and Recommendations dismissing civil action for failure to state a claim pursuant to 28 22 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)); and 23 (3) Wilkins v. Smith, et al., Case No. 25-cv-6426-HSG, ECF No. 11 (N.D. 24 Cal. Oct. 30, 2025), ECF No. 11 (Order dismissing action for failure to state 25 a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)). 26 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 27 “strikes” as defined by § 1915(g), he is not entitled to the privilege of proceeding IFP in 28 this action unless he makes a “plausible allegation” that he faced imminent danger of 1 serious physical injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; 2 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 3 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 4 the legal system from continuing to abuse it while enjoying IFP status”). 5 C. Imminent Danger of Serious Physical Injury 6 In order to qualify for § 1915(g)’s exception, Plaintiff’s pleading must contain a 7 “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the 8 time of filing.” Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). 9 Here, Wilkins alleges he has a “chrono” requiring he be assigned to a bottom bunk. 10 But when he arrived at Centinela State Prison, official attempted to assign him to a cell 11 with an inmate who was already occupying the bottom bunk. Wilkins also states he had 12 been told that the other inmate had a history of attacking cellmates. After Plaintiff notified 13 staff he required a bottom bunk, he was moved to another cell later that day. See ECF No. 14 1 at 4–5. While Wilkins states he injured his back as a result of being forced to occupy the 15 top bunk for a short time, he does not include any “plausible allegations” to suggest he 16 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 17 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 18 Accordingly, he is not entitled to proceed IFP in this civil action. See Cervantes, 493 19 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 20 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; it only 21 precludes prisoners with a history of abusing the legal system from continuing to abuse it 22 while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 23 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 24 25 26 27 28 2 For the reasons discussed above, the Court: 3 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 4 ||U.S.C. § 1915(g). 5 (2) DISMISSES this civil action without prejudice based on Plaintiff's failure to 6 ||pay the full statutory and administrative $405.00 civil filing fee required by 28 U.S.C. 7 1914 (a). 8 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 9 1/28 U.S.C. § 1915(a). 10 (4) DIRECTS the Clerk of the Court to close the case. 12 13 || DATED: April 13, 2026 (yi. Duhark 14 H n. Cynthia Bashant, Chief Judge United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 □□