Turner v. State of California

• Court: District Court, S.D. California
• Decided: February 18, 2020
• Docket: 3:19-cv-02363
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID B. TURNER, Jr., Case No.: 3:19-cv-02363-BAS-LL Booking No. 197347785, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY 28 U.S.C. § 1915(g) STATE OF CALIFORNIA; COUNTY [ECF No. 2] 16 OF SAN DIEGO; M.T.S.; WILLIAM D. 17 GORE; CITY OF EL CAJON; CITY OF AND SAN DIEGO, 18 Defendants. (2) DISMISSING CIVIL ACTION 19 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 20 REQUIRED BY 28 U.S.C. § 1914(a) 21 22 Plaintiff David B. Turner, Jr., currently imprisoned at George F. Bailey Detention 23 Facility (“GBDF”), in San Diego, California, has filed a civil rights Complaint pursuant to 24 42 U.S.C. § 1983. (See “Compl.,” ECF No. 1.)1 25

26 1 According to the San Diego County Sheriff’s Department’s website, Turner was last booked on June 6, 27 2019, has been sentenced, and is serving his prison term in San Diego Superior Court Case No. SCD282052 in local custody. See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=sCcBV 28 1 Turner names the State of California, the County of San Diego, M.T.S. (“transit 2 enforcement”), San Diego County Sheriff William D. Gore, and the cities of both San 3 Diego and El Cajon as Defendants. He alleges unidentified officials employed by these 4 Defendants used unreasonable force while effecting his arrest at a trolley station on October 5 13, 2018, in violation of his right to be free of cruel and unusual punishment under the 6 Eighth and Fourteenth Amendments, as well as under Article I of the California 7 Constitution. (See Compl. at 1‒3.) Turner further contends that on October 22, 2018, he 8 was too-tightly handcuffed during a transport by unidentified San Diego City Harbor Police 9 officers to “San Diego Mental Health in Old Town,” and was provided “no medical care 10 for [his] broken hand.” (Id. at 5.) Turner also cites previous incidents of unreasonable force 11 and to have been denied medical care at the “San Diego (Jails)” on 6/26/14, 12/3/13, and 12 on 3/21/13, complains of “toilet problems,” and claims to have been denied equal 13 protection with respect to sanitation and personal hygiene during his current term of 14 incarceration at GBDF. (Id. at 7‒8.) He seeks $77 million in general and punitive damages 15 and an injunction enjoining the Defendants from “den[y]ing the rights of the homeless.” 16 (Id. at 10.)2 17 18 19 Court may take judicial notice of public records available on online inmate locators. See United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator 20 available to the public); see also Foley v. Martz, No. 18-cv-2001-CAB-AGS, 2018 WL 5111998, at *1 21 (S.D. Cal. Oct. 19, 2018) (taking judicial notice of inmate locator).

22 2 The Court also takes judicial notice of its own dockets on PACER which show Turner has filed more than thirty similar cases over the course of the last ten years, most of them alleging excessive force and 23 the denial of medical care, and seeking monetary relief from the City and County of San Diego, County Sheriff’s Department officials, and the Metropolitan Transit System (M.T.S.). See https://pcl.uscourts 24 .gov/pcl/pages/search/results/parties.jsf?sid=3ee13dc867da42c1b64e13215b2a7397 (last accessed Feb. 25 14, 2020). A court may take judicial notice of its own records, see Molus v. Swan, No. 05cv542- MMA(WMc), 2009 WL 160937, *2 (S.D. Cal. 2009) (citing United States v. Author Servs., 804 F.2d 26 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 proceedings in other courts, both within and without the federal 27 judicial system, if those 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. 28 1 Turner has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a); 2 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”), (ECF No. 2). 3 I. Motion to Proceed IFP 4 A. Standard of Review 5 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 6 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Turner, however, “face 7 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 8 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 9 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 10 preclude the privilege to proceed IFP in cases where the prisoner: 11 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 12 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 13 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 14 15 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 16 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 17 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 18 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 19 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 20 from IFP status under the three strikes rule”). The objective of the PLRA is to further “the 21 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 22 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 23 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 24 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 25 Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as a denial 26 of the prisoner’s application to file the action without prepayment of the full filing fee.” 27 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 28 determine whether it counts as a strike, the style of the dismissal or the procedural posture 1 is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells 2 of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 3 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 4 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 5 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 6 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 7 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 8 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 9 B. Discussion 10 1. Plausible Allegations of Imminent Danger 11 Turner claims that the State, County, two municipalities, the Sheriff, and several 12 unidentified officers used unreasonable force while effecting two separate arrests in 2018, 13 and that afterward he was given “no medical help” for a wrist which he admits was broken 14 before he was first apprehended on October 13, 2018. (See Compl. at 3.) Turner also 15 alleges he was placed in a cell at GBDF with a toilet that “was having problems for days,” 16 and that he was deprived of a “clothing exchange, cleaner, towels or mops.” (Id. at 8.) 17 However, he does not say when that happened, fails to allege those conditions were 18 ongoing, and does not explain how the denial of his right to “personal hygiene” placed him 19 in imminent danger of serious physical injury, at the time he filed his Complaint. See 20 Cervantes, 493 F.3d at 1051–52. 21 Section § 1915(g)’s “imminent danger” exception cannot be triggered solely by 22 complaints of past harm. See id. at 1053 (“The exception’s use of the present tense, 23 combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to 24 us that the exception applies if the danger existed at the time the prisoner filed the 25 complaint.”); see also Bontemps v. Smith, No. CV 15-8226-JFW (SP), 2016 WL 10894023, 26 at *3 (C.D. Cal. Nov. 18, 2016) (finding a single incident of excessive force at another 27 prison, occurring more than a year before filing insufficient to satisfy 28 U..S.C. 28 § 1915(g)’s exception for imminent danger of serious physical injury), aff’d, 708 F. App’x 1 360 (9th Cir. 2017); see also Balzarini v. Lewis, No. 1:13-cv-820-LJO-BAM (PC), 2015 2 WL 2345464, *8 (E.D. Cal. May 14, 2015) (finding plaintiff’s disagreement with prison 3 medical personnel about the course or adequacy of treatment he was receiving did not 4 establish imminent danger); Moore v. Shift, No. CV 17-8137-PCT-DLR (JZB), 2017 WL 5 6884300, at *2 (D. Ariz. Sept. 12, 2017) (finding prisoner’s claims of having been denied 6 phone calls, mail, recreation, clothing exchanges, and hygiene and cleaning supplies 7 insufficient to show imminent danger of serious physical injury). 8 Therefore, the Court finds Turner’s Complaint contains no “plausible allegations” 9 to suggest he “faced ‘imminent danger of serious physical injury’ at the time of filing.” 10 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 11 2. Three Strikes 12 While Defendants typically carry the initial burden to show a prisoner is not entitled 13 to proceed IFP, “in some instances, the district court docket may be sufficient to show that 14 a prior dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts 15 as a strike.” Andrews, 398 F.3d at 1119‒20. That is the case here. 16 Based on a review of its own dockets, the Court finds that Plaintiff David B. Turner, 17 Jr., currently identified under San Diego County Booking No. 197347785, and previously 18 identified under San Diego County Sheriff’s Department Booking No. 13719099, Booking 19 No. 15780644, and CDCR Inmate #G-30643, while incarcerated, has had at least five prior 20 civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state 21 a claim upon which relief may be granted. They are: 22 1) Turner v. Metropolitan Transit System, et al., Civil Case No. 3:09-cv- 00770- L-POR (S.D. Cal. Nov. 11, 2009) (Order denying amended motion to 23 proceed IFP and dismissing amended complaint for failing to state a claim 24 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)) [ECF No. 6] (strike one); 25

26 2) Turner v. Corporal Saunder (7294), et al., Civil Case No. 3:13-cv- 01368- MMA-DHB (S.D. Cal. June 18, 2013) (Order dismissing action as 27 frivolous pursuant to 28 U.S.C. § 1915A(b) and denying motion to proceed 28 IFP as moot) [ECF No. 3] (strike two); 1 3) Turner v. County of San Diego, et al., Civil Case No. 3:13-cv-2288- 2 LAB-RBB (S.D. Cal. July 11, 2014) (Order sua sponte dismissing First 3 Amended Complaint for failing to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A(b) [ECF No. 7]; (Nov. 11, 2014, 9th 4 Circuit USCA, No. 14-56249) (Order denying appellant’s motion to proceed 5 IFP “because we find that there is no non-frivolous issue presented in this appeal”) [ECF No. 13] (strike three); 6

7 4) Turner v. San Diego County, et al., Civil Case No. 3:13-cv-02729-JLS- PCL (S.D. Cal. Nov. 19, 2014) (Order granting IFP and sua sponte dismissing 8 First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. 9 § 1915(e)(2)(B)(ii) and § 1915A(b)(1)) [ECF No. 13]; (March 20, 2015 Order dismissing case in its entirety for failing to state a claim pursuant to pursuant 10 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and for failing to 11 prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with Court Order requiring amendment) [ECF No. 14] (strike four);3 and 12

13 5) Turner v. San Diego County, et al., Ninth Cir. Ct. Appeal Case No. 15- 55544 (July 30, 2015 Order denying appellant’s motion to proceed IFP 14 “because we find that the appeal is frivolous”) [ECF No. 4] (strike five).4 15 Accordingly, because Turner has, while incarcerated, accumulated more than three 16 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 17 imminent danger of serious physical injury at the time he filed his Complaint, he is not 18 entitled to the privilege of proceeding in forma pauperis in this action. Accordingly, his 19 Motion to Proceed IFP (ECF No. 2) is DENIED. See Cervantes, 493 F.3d at 1055; 20 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 21 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 22 23 24 3 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a 25 complaint on the ground that it fails to state a claim, and (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 26 4 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s denial of 27 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 [appellant] did not pay the 28 1 || the legal system from continuing to abuse it while enjoying IFP status’’); see also Franklin 2 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (‘[C]ourt permission to proceed IFP is 3 ||itself a matter of privilege and not right.”’). 4 Conclusion and Orders 5 Based on the foregoing, the Court: 6 1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 7 \|U.S.C. § 1915(g); 8 2) DISMISSES this civil action sua sponte without prejudice for failing to 9 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 10 3) | CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 11 |/to 28 U.S.C. § 1915(a)(3); and 12 4) DIRECTS the Clerk of the Court to close the file. Plaintiff may re-open this 13 || case only if he pays the full $400 civil and administrative filing fee required by 28 U.S.C. 14 ||§ 1914(a) on or before March 16, 2020. 15 IT IS SO ORDERED. 16 17 || DATED: February 18, 2020 , 18 (pil A (Lyohaa. 6 19 United States District Judge 20 21 22 23 24 25 26 27 28 7