1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW VALLES, Case No.: 22-CV-1375 TWR (MDD) CDCR #BJ-6191, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING COMPLAINT
15 WITHOUT PREJUDICE FOR ATTORNEY GENERAL of the UNITED FAILURE TO PAY FILING FEE 16 STATES; ATTORNEY GENERAL of the 17 STATE of CALIFORNIA; and (ECF No. 2) ATTORNEY GENERAL of the STATE 18 of UTAH, 19 Defendants. 20 21 On September 9, 2022, Plaintiff Andrew Valles, currently incarcerated at California 22 Institution for Men in Chino, California, filed a civil rights Complaint pursuant to 42 U.S.C. 23 § 1983 (ECF No. 1, “Compl.”) and a Motion to Proceed In Forma Pauperis (“IFP”) (ECF 24 No. 2). Plaintiff did not pay the $402 filing fee. (See ECF 1.) 25 Plaintiff was convicted of four misdemeanor sex offenses in Utah in 2004 and was 26 released from custody in 2006 but has since been reconvicted because he failed to comply 27 with the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250. 28 (See Compl. at 12‒13.) He seeks an injunction voiding his registration requirement on the 1 grounds that SORNA violates his First Amendment rights and separation of powers 2 principles. (Id. at 12, 15‒16.) 3 LEGAL STANDARD 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 8 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “All persons, not 9 just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 10 890, 892 (9th Cir. 2011). Prisoners, however, “face an additional hurdle.” Id. 11 The Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the 12 privilege to proceed IFP in cases where the prisoner: 13 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 14 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 15 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). “Pursuant to 19 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 20 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) [hereinafter Cervantes] (explaining that 21 under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely 22 be barred from IFP status under the three strikes rule[.]”). The objective of the PLRA is to 23 further “the congressional goal of reducing frivolous prisoner litigation in federal court.” 24 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 25
26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), and include cases in which 4 “the district court styles such dismissal as a denial of the prisoner’s application to file the 5 action without prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 6 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a strike, 7 the style of the dismissal or the procedural posture is immaterial. Instead, the central 8 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 9 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 10 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 11 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 12 of any subsequent IFP civil action or appeal in federal court unless he “makes a plausible 13 allegation that [he] faced ‘imminent danger of serious physical injury’ at the time of filing.” 14 Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). “[T]he PLRA [also] 15 requires a nexus between [any] alleged imminent danger and the violations of law alleged 16 in the prisoner’s complaint.” Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022). Thus, to 17 qualify for an exception, “a three-strikes prisoner must allege imminent danger of serious 18 physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 19 and redressable by the court.” Id. at 701. 20 DISCUSSION 21 Based on a review of federal docket proceedings publicly available on PACER,2 the 22 Court takes judicial notice that Plaintiff Andrew Valles, currently identified as California 23 Department of Corrections (“CDCR”) Inmate #BJ-6191, while incarcerated, has had three 24 / / / 25 26 27 2 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 28 1 prior prisoner civil actions or appeals dismissed on the grounds that they were frivolous, 2 malicious, or failed to state a claim upon which relief may be granted. They are: 3 1. Valles v. United States, et al., No. 20-CV-9242 (LLS), 2021 WL 76428, at *3‒4 (S.D.N.Y. Jan. 6, 2021) (Order dismissing complaint for being 4 frivolous and failing to state a claim upon which relief may be granted 5 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii));
6 2. Valles v. Cal. Dep’t Corr. & Rehab., et al., No. 2:20-CV-01905-TLN- 7 AC (E.D. Cal. filed July 15, 2021), ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW VALLES, Case No.: 22-CV-1375 TWR (MDD) CDCR #BJ-6191, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING COMPLAINT
15 WITHOUT PREJUDICE FOR ATTORNEY GENERAL of the UNITED FAILURE TO PAY FILING FEE 16 STATES; ATTORNEY GENERAL of the 17 STATE of CALIFORNIA; and (ECF No. 2) ATTORNEY GENERAL of the STATE 18 of UTAH, 19 Defendants. 20 21 On September 9, 2022, Plaintiff Andrew Valles, currently incarcerated at California 22 Institution for Men in Chino, California, filed a civil rights Complaint pursuant to 42 U.S.C. 23 § 1983 (ECF No. 1, “Compl.”) and a Motion to Proceed In Forma Pauperis (“IFP”) (ECF 24 No. 2). Plaintiff did not pay the $402 filing fee. (See ECF 1.) 25 Plaintiff was convicted of four misdemeanor sex offenses in Utah in 2004 and was 26 released from custody in 2006 but has since been reconvicted because he failed to comply 27 with the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250. 28 (See Compl. at 12‒13.) He seeks an injunction voiding his registration requirement on the 1 grounds that SORNA violates his First Amendment rights and separation of powers 2 principles. (Id. at 12, 15‒16.) 3 LEGAL STANDARD 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 8 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “All persons, not 9 just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 10 890, 892 (9th Cir. 2011). Prisoners, however, “face an additional hurdle.” Id. 11 The Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the 12 privilege to proceed IFP in cases where the prisoner: 13 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 14 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 15 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). “Pursuant to 19 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 20 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) [hereinafter Cervantes] (explaining that 21 under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely 22 be barred from IFP status under the three strikes rule[.]”). The objective of the PLRA is to 23 further “the congressional goal of reducing frivolous prisoner litigation in federal court.” 24 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 25
26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), and include cases in which 4 “the district court styles such dismissal as a denial of the prisoner’s application to file the 5 action without prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 6 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a strike, 7 the style of the dismissal or the procedural posture is immaterial. Instead, the central 8 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 9 to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting 10 Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 11 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 12 of any subsequent IFP civil action or appeal in federal court unless he “makes a plausible 13 allegation that [he] faced ‘imminent danger of serious physical injury’ at the time of filing.” 14 Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). “[T]he PLRA [also] 15 requires a nexus between [any] alleged imminent danger and the violations of law alleged 16 in the prisoner’s complaint.” Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022). Thus, to 17 qualify for an exception, “a three-strikes prisoner must allege imminent danger of serious 18 physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 19 and redressable by the court.” Id. at 701. 20 DISCUSSION 21 Based on a review of federal docket proceedings publicly available on PACER,2 the 22 Court takes judicial notice that Plaintiff Andrew Valles, currently identified as California 23 Department of Corrections (“CDCR”) Inmate #BJ-6191, while incarcerated, has had three 24 / / / 25 26 27 2 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 28 1 prior prisoner civil actions or appeals dismissed on the grounds that they were frivolous, 2 malicious, or failed to state a claim upon which relief may be granted. They are: 3 1. Valles v. United States, et al., No. 20-CV-9242 (LLS), 2021 WL 76428, at *3‒4 (S.D.N.Y. Jan. 6, 2021) (Order dismissing complaint for being 4 frivolous and failing to state a claim upon which relief may be granted 5 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii));
6 2. Valles v. Cal. Dep’t Corr. & Rehab., et al., No. 2:20-CV-01905-TLN- 7 AC (E.D. Cal. filed July 15, 2021), ECF No. 16 (Order adopting in full Findings and Recommendations and dismissing complaint for failure to state 8 a claim upon which relief may be granted pursuant to 28 U.S.C. § 9 1915A(b)(1)); and
10 3. Valles v. Cal. Dep’t Corr. & Rehab., et al., No. 21-16290 (9th Cir. filed 11 March 18, 2022), ECF No. 6 (Order denying motion to proceed IFP and dismissing appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)).3 12 13 Accordingly, because Valles has, while incarcerated, accumulated three qualifying 14 strikes as defined by section 1915(g), he is not entitled to the privilege of proceeding IFP 15 in this action unless he makes a plausible allegation that he faced imminent danger of 16 serious physical injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; 17 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 18 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 19 the legal system from continuing to abuse it while enjoying IFP status”). 20 Valles’s Complaint contains no plausible allegations to suggest he “faced ‘imminent 21 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 22 (quoting 28 U.S.C. § 1915(g)). Instead, Valles’s suit seeks to challenge the 23 constitutionality of 18 U.S.C. § 2250, both on its face and as applied to him in several 24 25
26 3 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (explaining that an appellate court’s denial 27 of a prisoner’s request for IFP status on appeal on grounds of frivolousness qualifies as a “strike” under § 1915(g)). 28 1 ||criminal proceedings filed against him in New York, Utah, and California.* (See Compl., 2 12-16.) Because no fair reading of his Complaint suggests any imminent danger fairly 3 || traceable to the unlawful conduct he alleges, see Ray, 31 F.4th at 701, Valles does not 4 || qualify for an exception under section 1915(g) and must pay the filing fee set by 28 U.S.C. 5 || § 1914(a) in order to proceed with this action. 6 CONCLUSION 7 For the foregoing reasons, the Court: (1) DENIES Plaintiff's Motion to Proceed IFP 8 (ECF No. 2) as barred by 28 U.S.C. § 1915(g); and (2) DISMISSES Plaintiff's Complaint 9 || without prejudice for failure to satisfy the filing fee requirement set forth in 28 U.S.C. § 10 || 1914(a). If Valles fails to pay the $402 civil filing fee in full within forty-five (45) days of 11 || the filing of this Order, the case will remain dismissed without any further Order of the 12 || Court. 13 IT ISSO ORDERED. 14 || Dated: November 18, 2022 —— (2 15 [as \& (ore 16 Honorable Todd W. Robinson 7 United States District Judge 18 19 20 21 22 23 24 95 ||* SORNA was enacted “to protect the public from sex offenders and offenders against children” by “establish[ing] a comprehensive national system for [their] registration” that imposes “more onerous” 26 || registration requirements than most states had before its enactment. Gundy v. United States, 139 S. Ct. 2116, 2121 (2019), reh’g denied, 140 S. Ct. 579 (2019); Wright v. State, 47 F.4th 954, 956 (9th Cir. 2022). 27 |! Section 2250(a) subjects to federal prosecution: (1) convicted sex offenders (2) who travel in interstate 2g || commerce and (3) knowingly fail to comply with their SORNA registration obligations. See Carr v. United States, 560 U.S. 438, 446-47 (2010).