1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLAUDIE TYLER, Case No. 24-cv-02341-RSH-DEB CDCR #K-19763, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 AS BARRED BY 28 U.S.C. § 1915(g) C/O DELGADO, Correctional Officer, et
16 al., AND 17 Defendants. (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR 19 FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 20
21 [ECF No. 2] 22 23 Plaintiff Claudie Tyler, a state prisoner currently incarcerated at Richard J. Donovan 24 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 25 rights action filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Tyler alleges 26 various RJD officials in Facility C violated his Eighth Amendment rights on unspecified 27 occasions between June 2018 and August 2023 by discriminating against him based on his 28 race and by showing favoritism toward white and Mexican prison porters. Id. at 2‒5. 1 Tyler did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil 2 action at the time he filed his Complaint; instead, he has filed a motion to proceed in forma 3 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. For the reasons below, 4 the Court denies Tyler’s motion and dismisses this civil action without prejudice. 5 I. IFP MOTION 6 A. Legal Standard 7 When someone files a lawsuit (other than a writ of habeas corpus) in a federal district 8 court, the filer must pay a statutory fee of $350. See 28 U.S.C. § 1914(a).1 Absent fee 9 payment, the action may proceed only if the filer seeks, and the court grants him leave to 10 IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 11 Cir. 2007). “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa 12 County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Tyler, however, 13 “face an additional hurdle.” Id. 14 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 15 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 16 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 17 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 18 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 19 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 20 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 21 § 1915(g)); Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). “A negative consequence that 22 may impact a prisoner who files [] frivolous complaint[s] is a restriction on his ability to 23 // 24 25 26 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply 27 to … persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, Dist. Ct. Misc. Fee Schedule § 14) (eff. Dec. 1, 2023); see 28 1 file future cases without prepaying filing fees.” Harris v. Mangum, 863 F.3d 1133, 1139 2 (9th Cir. 2017). 3 When courts “review a dismissal to determine whether it counts as a strike, the style 4 of the dismissal or the procedural posture is immaterial. Instead, the central question is 5 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 6 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 7 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 8 1915(g) [] hinges exclusively on the basis for the dismissal, regardless of the decision’s 9 prejudicial effect.” Lomax, 140 S. Ct. at 1724–25. “[I]f a case was not dismissed on one of 10 the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 11 Harris, 935 F.3d 670, 673 (9th Cir. 2019); see also Hoffman v. Pulido, 928 F.3d 1147, 12 1152 (9th Cir. 2019) (“[T]o qualify as a strike for § 1915(g), a case as a whole, not just 13 some of its individual claims, must be dismissed for a qualifying reason.”) (citing 14 Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 15 Once a prisoner accumulates three strikes, however, § 1915(g) precludes his ability to 16 proceed IFP in any other civil actions or appeals in federal court unless he “makes a 17 plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the time 18 of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). 19 B. Analysis 20 Defendants typically carry the initial burden to produce evidence demonstrating a 21 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 22 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 23 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 24 (9th Cir. 2005). This is one of those instances, as this Court’s dockets show Tyler is no 25 longer eligible to proceed IFP because while incarcerated, he has had more than three prior 26 prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed 27 to state a claim upon which relief may be granted. Pursuant to Federal Rule of Evidence 28 201(b)(2), this Court may take judicial notice of the docket records in Tyler’s prior cases. 1 See Andrews, 398 F.3d at 1120; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) 2 (stating that a court may take judicial notice of its own records in other cases, as well as 3 other courts’ records). The following records sufficiently show Tyler has five qualifying 4 strikes: 5 (1) Tyler v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLAUDIE TYLER, Case No. 24-cv-02341-RSH-DEB CDCR #K-19763, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 AS BARRED BY 28 U.S.C. § 1915(g) C/O DELGADO, Correctional Officer, et
16 al., AND 17 Defendants. (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR 19 FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 20
21 [ECF No. 2] 22 23 Plaintiff Claudie Tyler, a state prisoner currently incarcerated at Richard J. Donovan 24 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 25 rights action filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Tyler alleges 26 various RJD officials in Facility C violated his Eighth Amendment rights on unspecified 27 occasions between June 2018 and August 2023 by discriminating against him based on his 28 race and by showing favoritism toward white and Mexican prison porters. Id. at 2‒5. 1 Tyler did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil 2 action at the time he filed his Complaint; instead, he has filed a motion to proceed in forma 3 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. For the reasons below, 4 the Court denies Tyler’s motion and dismisses this civil action without prejudice. 5 I. IFP MOTION 6 A. Legal Standard 7 When someone files a lawsuit (other than a writ of habeas corpus) in a federal district 8 court, the filer must pay a statutory fee of $350. See 28 U.S.C. § 1914(a).1 Absent fee 9 payment, the action may proceed only if the filer seeks, and the court grants him leave to 10 IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 11 Cir. 2007). “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa 12 County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Tyler, however, 13 “face an additional hurdle.” Id. 14 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 15 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 16 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 17 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 18 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 19 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 20 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 21 § 1915(g)); Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). “A negative consequence that 22 may impact a prisoner who files [] frivolous complaint[s] is a restriction on his ability to 23 // 24 25 26 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply 27 to … persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, Dist. Ct. Misc. Fee Schedule § 14) (eff. Dec. 1, 2023); see 28 1 file future cases without prepaying filing fees.” Harris v. Mangum, 863 F.3d 1133, 1139 2 (9th Cir. 2017). 3 When courts “review a dismissal to determine whether it counts as a strike, the style 4 of the dismissal or the procedural posture is immaterial. Instead, the central question is 5 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 6 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 7 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 8 1915(g) [] hinges exclusively on the basis for the dismissal, regardless of the decision’s 9 prejudicial effect.” Lomax, 140 S. Ct. at 1724–25. “[I]f a case was not dismissed on one of 10 the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 11 Harris, 935 F.3d 670, 673 (9th Cir. 2019); see also Hoffman v. Pulido, 928 F.3d 1147, 12 1152 (9th Cir. 2019) (“[T]o qualify as a strike for § 1915(g), a case as a whole, not just 13 some of its individual claims, must be dismissed for a qualifying reason.”) (citing 14 Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 15 Once a prisoner accumulates three strikes, however, § 1915(g) precludes his ability to 16 proceed IFP in any other civil actions or appeals in federal court unless he “makes a 17 plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the time 18 of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). 19 B. Analysis 20 Defendants typically carry the initial burden to produce evidence demonstrating a 21 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 22 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 23 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 24 (9th Cir. 2005). This is one of those instances, as this Court’s dockets show Tyler is no 25 longer eligible to proceed IFP because while incarcerated, he has had more than three prior 26 prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed 27 to state a claim upon which relief may be granted. Pursuant to Federal Rule of Evidence 28 201(b)(2), this Court may take judicial notice of the docket records in Tyler’s prior cases. 1 See Andrews, 398 F.3d at 1120; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) 2 (stating that a court may take judicial notice of its own records in other cases, as well as 3 other courts’ records). The following records sufficiently show Tyler has five qualifying 4 strikes: 5 (1) Tyler v. Gomez, No. 3:22-CV-1906-DMS-DEB, 2023 WL 2567349, at *2 (S.D. Cal. Mar. 17, 2023) (ECF No. 13) (Order dismissing second 6 amended complaint for failing to state a claim pursuant to 28 U.S.C. 7 § 1915A); 8 (2) Tyler v. Gomze, et al., No. 3:23-CV-00724-MMA-MSB (S.D. Cal. May 9 17, 2023) (ECF No. 7) (Order dismissing complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A(b) and for failure to comply with 10 Fed. R. Civ. P. 8); id. (S.D. Cal. Aug. 11, 2023) (ECF No. 8) (Order 11 dismissing civil action for failure to prosecute in compliance with Court Order);2 12 (3) Tyler v. Vega, et al., No. 3:2:23-CV-00451-JLS-JLB (S.D. Cal. Dec. 13 19, 2023) (ECF No. 15) (Order dismissing second amended complaint 14 for failing to state a claim without leave to amend pursuant to 28 U.S.C. § 1915A); 15
16 (4) Tyler v. Lu, No. 3:23-CV-2284-LL-SBC, 2024 WL 923784, at *3 (S.D. Cal. Mar. 4, 2024) (ECF No. 7) (Order dismissing complaint for failing 17 to state a claim upon which relief may be granted pursuant to 28 U.S.C. 18 § 1915A(b)); id. (S.D. Cal. June 12, 2024) (ECF No. 8) (Order dismissing civil action for failing to prosecute in compliance with Court 19 Order); 20 (5) Tyler v. Lewis, No. 3:23-CV-2278-BAS-MMP, 2024 WL 3557454, at 21 *5 (S.D. Cal. July 25, 2024) (ECF No. 10) (Order dismissing amended 22 complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)); 23
24 25 2 See Harris, 863 F.3d at 1142 (finding that a failure to amend does “not negate the 26 determination already made by the Court that the complaint [plaintiff] had filed ... failed to 27 state a claim.”). “A prisoner may not avoid incurring strikes simply by declining to take advantage of [an] opportunit[y] to amend.” Id. at 1143. 28 1 id., (S.D. Cal. Oct. 7, 2024) (ECF No. 14) (Order dismissing action without prejudice for failure to amend). 2
3 Because Tyler accumulated these prior qualifying dismissals while incarcerated, he 4 may not proceed IFP unless he meets § 1915(g)’s “imminent danger” exception. To do so, 5 his pleading must contain a “plausible allegation that [he] faced ‘imminent danger of 6 serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting U.S.C. 7 § 1915(g)). Imminent danger requires a claimed harm that is “ready to take place” or 8 “hanging threateningly over one’s head.” Id. at 1056. The alleged danger must also “stem[] 9 from the violations of law alleged in [the] complaint.” Ray, 31 F.4th at 701. Thus, 10 § 1915(g)’s exception “functions as a limited safety valve,” id., but it “cannot be triggered 11 solely by complaints of past injury or generalized fears of possible future harm.” 12 Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. 13 Apr. 8, 2021). 14 A review of Tyler’s Complaint shows it fails to include any allegations of imminent 15 physical danger. Instead, Tyler claims Defendants have discriminated against him based 16 on race and rendered him the “Building C-12 Black slave” during the five years he has 17 served as a porter—all while allegedly permitting white and Mexican inmates to “work 18 out” and “do push ups” while he clean[s] the whole block by [him]self.” See Compl. at 3‒ 19 5. These types of purely conclusory allegations do not plausibly suggest Tyler faced any 20 serious threat of physical harm existed at the time of filing. Consequently, he does not 21 qualify for a § 1915(g) exception and may not proceed IFP in this case. See Cervantes, 493 22 F.3d at 1055; Ray, 31 F.4th at 701; Byrd v. Dir. of Corr., No. 3:15-cv-2339-GPC-KSC, 23 2016 WL 773229, at *2 (S.D. Cal. Feb. 29, 2016) (finding prisoner’s allegations of having 24 been denied access to court and discriminated against based on race and religion 25 insufficient to invoke § 1915(g)’s imminent danger exception); K’napp v. Beard, 2014 WL 26 584404, at *2 (E.D. Cal. Feb. 12, 2014) (finding conclusory allegations of “retaliation, 27 harassment, indifference, discrimination, oppression and abuse” insufficient to qualify as 28 “imminent danger” under § 1915(g)). l “The right to proceed in forma pauperis is not an unqualified one. [...] It is a 2 || privilege, rather than a right.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) 3 ||(citations omitted). Section 1915(g) “does not prevent all prisoners from accessing the 4 ||courts; it only precludes prisoners with a history of abusing the legal system from 5 || continuing to abuse it while enjoying IFP status.” Rodriguez v. Cook, 169 F.3d 1176, 1180 6 Cir. 1999). 7 CONCLUSION 8 For the reasons explained, the Court: 9 (1) DENIES Tyler’s Motion to Proceed IFP [ECF No. 2] as barred by 28 U.S.C. 10 }/§ 1915(g); 11 (2) DISMISSES this civil action without prejudice based on Tyler’s failure to 12 || pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a); 13 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 14 U.S.C. § 1915(a)(3), and 15 (4) DIRECTS the Clerk of Court to enter a judgment of dismissal and to close 16 || the case. 17 IT IS SO ORDERED. Keke C 18 || Dated: April 23, 2025 19 Hon.RobertS.Huie 0 United States District Judge 21 22 23 24 25 26 27 28 6 a □□