1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLAUDIE TYLER, Case No. 3:25-cv-00718-AJB-DDL CDCR #K-19763, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 WITHOUT PREJUDICE FOR ESCALERA, Correctional Officer, FAILURE TO PAY FILING FEE 16 Defendant. REQUIRED BY 17 28 U.S.C. § 1914(a)
18 (Doc. No. 2) 19 20 Plaintiff Claudie Tyler, a state prisoner currently incarcerated at Richard J. Donovan 21 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 22 rights action filed pursuant to 42 U.S.C. § 1983. (See Doc. No. 1.) Tyler claims a RJD 23 correctional officer violated his Eighth Amendment rights and committed an act of “racial 24 prejudice” when he filed “false paperwork” alleging to have found alcohol in Tyler’s cell 25 on September 7, 2024. (Id. at 3‒4.) Tyler did not pay the filing fee required by 28 U.S.C. 26 § 1914(a) to commence a civil action at the time he filed his Complaint; instead, he has 27 filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. 28 No. 2.) 1 Because Tyler has had more than three prior civil actions dismissed as frivolous, 2 malicious, or for failing to state a claim and does not allege to have faced imminent danger 3 of serious physical injury at the time of filing, the Court DENIES Tyler’s Motion to 4 Proceed IFP 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) (“Cervantes”). “All persons, not just prisoners, may seek IFP status.” Moore v. 12 Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Tyler, 13 however, “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 file future cases without prepaying filing fees.” Harris v. Mangum, 863 F.3d 1133, 1139 24 (9th Cir. 2017). 25 /// 26 27 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply to . . . persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, 28 1 When courts “review a dismissal to determine whether it counts as a strike, the style 2 of the dismissal or the procedural posture is immaterial. Instead, the central question is 3 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 4 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 5 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 6 1915(g) [] hinges exclusively on the basis for the dismissal, regardless of the decision’s 7 prejudicial effect.” Lomax, 140 S. Ct. at 1724–25. “[I]f a case was not dismissed on one of 8 the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 9 Harris, 935 F.3d 670, 673 (9th Cir. 2019); see also Hoffman v. Pulido, 928 F.3d 1147, 10 1152 (9th Cir. 2019) (“[T]o qualify as a strike for § 1915(g), a case as a whole, not just 11 some of its individual claims, must be dismissed for a qualifying reason.”) (citing 12 Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 13 Once a prisoner accumulates three strikes, however, § 1915(g) precludes his ability to 14 proceed IFP in any other civil actions or appeals in federal court unless he “makes a 15 plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). 17 B. Analysis 18 Defendants typically carry the initial burden to produce evidence demonstrating a 19 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 20 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 21 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 22 (9th Cir. 2005). This is one of those instances, as this Court’s dockets show Tyler is no 23 longer eligible to proceed IFP because while incarcerated, he has had more than three prior 24 prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed 25 to state a claim upon which relief may be granted. 26 Pursuant to Federal Rule of Evidence 201(b)(2), this Court may take judicial notice 27 of the docket records in Tyler’s prior cases. See Andrews, 398 F.3d at 1120; United States 28 v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court may take judicial notice 1 of its own records in other cases, as well as other courts’ records).
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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. 3:25-cv-00718-AJB-DDL CDCR #K-19763, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 WITHOUT PREJUDICE FOR ESCALERA, Correctional Officer, FAILURE TO PAY FILING FEE 16 Defendant. REQUIRED BY 17 28 U.S.C. § 1914(a)
18 (Doc. No. 2) 19 20 Plaintiff Claudie Tyler, a state prisoner currently incarcerated at Richard J. Donovan 21 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 22 rights action filed pursuant to 42 U.S.C. § 1983. (See Doc. No. 1.) Tyler claims a RJD 23 correctional officer violated his Eighth Amendment rights and committed an act of “racial 24 prejudice” when he filed “false paperwork” alleging to have found alcohol in Tyler’s cell 25 on September 7, 2024. (Id. at 3‒4.) Tyler did not pay the filing fee required by 28 U.S.C. 26 § 1914(a) to commence a civil action at the time he filed his Complaint; instead, he has 27 filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. 28 No. 2.) 1 Because Tyler has had more than three prior civil actions dismissed as frivolous, 2 malicious, or for failing to state a claim and does not allege to have faced imminent danger 3 of serious physical injury at the time of filing, the Court DENIES Tyler’s Motion to 4 Proceed IFP 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) (“Cervantes”). “All persons, not just prisoners, may seek IFP status.” Moore v. 12 Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Tyler, 13 however, “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 file future cases without prepaying filing fees.” Harris v. Mangum, 863 F.3d 1133, 1139 24 (9th Cir. 2017). 25 /// 26 27 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply to . . . persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, 28 1 When courts “review a dismissal to determine whether it counts as a strike, the style 2 of the dismissal or the procedural posture is immaterial. Instead, the central question is 3 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 4 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 5 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 6 1915(g) [] hinges exclusively on the basis for the dismissal, regardless of the decision’s 7 prejudicial effect.” Lomax, 140 S. Ct. at 1724–25. “[I]f a case was not dismissed on one of 8 the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 9 Harris, 935 F.3d 670, 673 (9th Cir. 2019); see also Hoffman v. Pulido, 928 F.3d 1147, 10 1152 (9th Cir. 2019) (“[T]o qualify as a strike for § 1915(g), a case as a whole, not just 11 some of its individual claims, must be dismissed for a qualifying reason.”) (citing 12 Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 13 Once a prisoner accumulates three strikes, however, § 1915(g) precludes his ability to 14 proceed IFP in any other civil actions or appeals in federal court unless he “makes a 15 plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). 17 B. Analysis 18 Defendants typically carry the initial burden to produce evidence demonstrating a 19 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 20 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 21 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 22 (9th Cir. 2005). This is one of those instances, as this Court’s dockets show Tyler is no 23 longer eligible to proceed IFP because while incarcerated, he has had more than three prior 24 prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed 25 to state a claim upon which relief may be granted. 26 Pursuant to Federal Rule of Evidence 201(b)(2), this Court may take judicial notice 27 of the docket records in Tyler’s prior cases. See Andrews, 398 F.3d at 1120; United States 28 v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court may take judicial notice 1 of its own records in other cases, as well as other courts’ records). The following records 2 sufficiently show Tyler has five qualifying strikes: 3 (1) Tyler v. Gomez, No. 3:22-CV-1906-DMS-DEB, 2023 WL 2567349, at 4 *2 (S.D. Cal. Mar. 17, 2023) (Doc. No. 13) (Order dismissing second amended complaint for failing to state a claim pursuant to 28 U.S.C. 5 § 1915A); 6 (2) Tyler v. Gomze, et al., No. 3:23-CV-00724-MMA-MSB (S.D. Cal. May 7 17, 2023) (Doc. No. 7) (Order dismissing complaint for failure to state 8 a claim pursuant to 28 U.S.C. § 1915A(b) and for failure to comply with Fed. R. Civ. P. 8); id. (S.D. Cal. Aug. 11, 2023) (Doc. No. 8) (Order 9 dismissing civil action for failure to prosecute in compliance with Court 10 Order);2
11 (3) Tyler v. Vega, et al., No. 3:2:23-CV-00451-JLS-JLB (S.D. Cal. Dec. 19, 2023) (Doc. No. 15) (Order dismissing second amended complaint 12 for failing to state a claim without leave to amend pursuant to 28 U.S.C. 13 § 1915A);
14 (4) Tyler v. Lu, No. 3:23-CV-2284-LL-SBC, 2024 WL 923784, at *3 (S.D. 15 Cal. Mar. 4, 2024) (Doc. No. 7) (Order dismissing complaint for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 16 § 1915A(b)); id. (S.D. Cal. June 12, 2024) (Doc. No. 8) (Order 17 dismissing civil action for failing to prosecute in compliance with Court Order); and 18
19 (5) Tyler v. Lewis, No. 3:23-CV-2278-BAS-MMP, 2024 WL 3557454, at *5 (S.D. Cal. July 25, 2024) (Doc. No. 10) (Order dismissing amended 20 complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)); 21 id., (S.D. Cal. Oct. 7, 2024) (Doc. No. 14) (Order dismissing action without prejudice for failure to amend). 22
23 Because Tyler accumulated these prior qualifying dismissals while incarcerated, he 24 may not proceed IFP in this case unless he meets § 1915(g)’s “imminent danger” exception. 25
26 2 See Harris, 863 F.3d at 1142 (finding that a failure to amend does “not negate the determination 27 already made by the Court that the complaint [plaintiff] had filed . . . failed to state a claim.”). “A prisoner may not avoid incurring strikes simply by declining to take advantage of [an] opportunit[y] to amend.” Id. 28 1 To do so, his pleading must contain a “plausible allegation that [he] faced ‘imminent danger 2 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 3 U.S.C. § 1915(g)). Imminent danger requires a claimed harm that is “ready to take place” 4 or “hanging threateningly over one’s head.” Id. at 1056. The alleged danger must also 5 “stem[] from the violations of law alleged in [the] complaint.” Ray, 31 F.4th at 701. Thus, 6 § 1915(g)’s exception “functions as a limited safety valve,” id., but it “cannot be triggered 7 solely by complaints of past injury or generalized fears of possible future harm.” 8 Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. 9 Apr. 8, 2021). 10 A review of Tyler’s Complaint shows it fails to include any allegations of imminent 11 physical danger whatsoever. Instead, Tyler claims Officer Escalera discriminated against 12 him based on race and falsely accused him of possessing alcohol in September 2024. (See 13 Doc. No. 1 at 2‒4.) These purely conclusory allegations do not plausibly suggest Tyler 14 faced any serious threat of physical harm at the time he filed his Complaint six months 15 later in March 2025. Consequently, he does not qualify for a § 1915(g) exception and may 16 not proceed IFP in this case. See Cervantes, 493 F.3d at 1055; Ray, 31 F.4th at 701; 17 Martinez v. Sec'y of California Dep't of Corr. & Rehab., No. 1:22-CV-01170 GSA (PC), 18 2025 WL 393000, at *4 (E.D. Cal. Jan. 28, 2025) (finding no imminent danger of imminent 19 physical injury where prisoner filed suit alleging a false rules violation report had been 20 filed against him), report and recommendation adopted, 2025 WL 572995 (E.D. Cal. Feb. 21 21, 2025); Byrd v. Dir. of Corr., No. 3:15-cv-2339-GPC-KSC, 2016 WL 773229, at *2 22 (S.D. Cal. Feb. 29, 2016) (finding access to courts and racial discrimination allegations 23 insufficient to invoke § 1915(g)’s imminent danger exception); K’napp v. Beard, 2014 WL 24 584404, at *2 (E.D. Cal. Feb. 12, 2014) (finding conclusory allegations of “retaliation, 25 harassment, indifference, discrimination, oppression and abuse” insufficient to qualify as 26 “imminent danger” under § 1915(g)). 27 “The right to proceed in forma pauperis is not an unqualified one. [. . .] It is a 28 privilege, rather than a right.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) 1 ||(citations omitted). Section 1915(g) “does not prevent all prisoners from accessing the 2 ||courts; it only precludes prisoners with a history of abusing the legal system from 3 || continuing to abuse it while enjoying IFP status.” Rodriguez v. Cook, 169 F.3d 1176, 1180 4 || (9th Cir. 1999). 5 CONCLUSION 6 For the reasons explained, the Court: 7 (1) DENIES Tyler’s Motion to Proceed IFP (Doc. No. 2) as barred by 28 U.S.C. 8 1915(g); 9 (2) DISMISSES this civil action without prejudice based on Tyler’s failure to 10 || pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a); 11 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 12 U.S.C. § 1915(a)(3), and 13 (4) DIRECTS the Clerk of Court to enter a judgment of dismissal and to close 14 || the case. 15 IT IS SO ORDERED. 16 ||Dated: April 21, 2025 © ¢ 17 Hon. Anthony J. attaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 6 oe