Wilbur Lann Pittman v. M. Hajemann, CCI Correctional Counselor, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILBUR LANN PITTMAN, Case No. 26-CV-00141-TWR (BLM) CDCR #BW-6431, 12 ORDER: (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g), 14 AND (2) DISMISSING CIVIL

15 ACTION WITHOUT PREJUDICE M. HAJEMANN, CCI Correctional FOR FAILURE TO PAY FILING 16 Counselor, et al., FEE REQUIRED BY 28 U.S.C. 17 Defendants. § 1914(a)

18 (ECF No. 2) 19 20 21 Plaintiff Wilbur Lann Pittman, a prisoner at California Substance Abuse Treatment 22 Facility (“SATF”) in Corcoran, California, proceeding pro se, filed a civil rights 23 Complaint, (“Compl.,” ECF No. 1), pursuant to 42 U.S.C. § 1983, together with a Motion 24 to Proceed In Forma Pauperis, (“IFP Mot.,” ECF No. 2), in the Eastern District of 25 California on December 29, 2025. Because Plaintiff seeks to sue officials at the California 26 Department of Corrections and Rehabilitation’s Male Community Reentry Program 27 (“MCRP”) in San Diego, and all Defendants are alleged to be employed at MCRP in San 28 Diego, United States Magistrate Judge Stanley A. Boone determined Plaintiff’s claims 1 arose in the Southern District of California, and transferred his case here pursuant to 28 2 U.S.C. § 1406(a). (See ECF No. 3.) 3 I. IFP MOTION 4 A. Legal Standard 5 All parties instituting any civil action, suit, or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 8 although the administrative fee does not apply to persons granted leave to proceed IFP. 9 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 10 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if they are granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 13 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 14 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 15 . . . if [a] prisoner 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 16 States that was dismissed on the grounds that it is frivolous, malicious, or fails 17 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 18 19 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 21 “Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 22 pursuing any other IFP action in federal court unless he can show he is facing ‘imminent 23 danger of serious physical injury.’” Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s 24 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced 25 ‘imminent danger of serious physical injury’ at the time of filing.’”). “Strikes are prior 26 cases or appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the 27 ground that (they were) frivolous, malicious, or fail[ed] to state a claim,” Andrews, 398 28 F.3d at 1116 n.1, “even if the district court styles such dismissal as a denial of the prisoner’s 1 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 2 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to determine 3 whether it counts as a strike, the style of the dismissal or the procedural posture is 4 immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells of 5 frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 6 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 7 B. Analysis 8 Defendants typically carry the initial burden to produce evidence demonstrating a 9 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 10 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 11 under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. This is one 12 of those instances, as a review of Plaintiff’s district court dockets1 confirms he is no longer 13 eligible to proceed IFP because while incarcerated, he has had more than three prior 14 prisoner civil actions dismissed for a “qualifying reason” under Section 1915(g). Hoffman 15 v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019). The following records are sufficient to 16 show Plaintiff has seven qualifying strikes: 17 (1) Pittman v. Van Stralen, et al., Case No. 5:08-cv-01747-UA-PLA (C.D. Cal. Dec. 16, 2008) (Order denying leave to file action without 18 prepayment of filing fees and finding complaint to be “legally and/or 19 patently frivolous” pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 7 at 1–3); 20 21 (2) Pittman v. Martel, Case No. 5:08-cv-01899-UA-PLA (C.D. Cal. Jan. 14, 2009) (Order denying leave to file action without prepayment of 22 filing fees and finding complaint to be “legally and/or patently 23 frivolous” pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 5 at 1–3); 24 25

26 1 Pursuant to Federal Rule of Evidence 201(b)(2), this Court may take judicial notice of the docket 27 records in Plaintiff’s prior cases. See Andrews, 398 F.3d at 1120; United States v. Raygoza -Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, 28 1 2 (3) Pittman v. Stacie, Case No. 5:08-cv-01900-UA-PLA (C.D. Cal. Jan. 14, 3 2009) (Order denying leave to file action without prepayment of filing fee and finding complaint to be “legally and/or patently frivolous” 4 pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 5 at 1–3); 5 (4) Pittman v. Pearson, et al., Case No. 2:08-cv-02805-FCD-DAD (E.D. 6 Cal. April 6, 2009) (Order and Findings and Recommendations [“F&Rs”] to dismiss action for failure to state a claim pursuant to 28 7 U.S.C. § 1915A(b)(1) and (2)) (ECF No. 4 at 1–3); id., 2009 WL 8 1456552, at *1 (E.D. Cal. May 22, 2009) (Order adopting F&Rs) (ECF No. 5); 9 10 (5) Pittman v. Blindzius, Case No. 2:08-cv-02809-JAM-DAD (E.D. Cal. April 6, 2009) (Order and F&Rs to dismiss action for failure to state a 11 claim pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3 at 1–3); id. 12 (E.D. Cal. June 24, 2009) (Order adopting F&Rs) (ECF No. 4); 13 (6) Pittman v. Grannis, Case No. 2:08-cv-02806-JAM-DAD (E.D. Cal. 14 April 6, 2009) (Order granting IFP and dismissing complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A(b) with leave to amend) 15 (ECF No. 3); id., (E.D. Cal. May 21, 2009) (Order and F&Rs to dismiss 16 for failing to amend/comply with court order) (ECF No. 4 at 1); id., (E.D. Cal. July 21, 2009) (Order adopting F&Rs) (ECF No. 5 at 2);2 17 and 18 (7) Pittman v. Pearson, Case No. 2:08-cv-0213-LKK-DAD (E.D. Cal. 19 April 6, 2009) (Order and F&Rs to dismiss action for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3 at 1–3); id., 20 (E.D. Cal. July 31, 2009) (Order adopting F&Rs) (ECF No. 4 at 1–2). 21 Because Plaintiff accumulated these prior strike dismissals while incarcerated, he 22 may not proceed IFP in this case unless he meets Section 1915(g)’s “imminent danger” 23 24 25

26 2 See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (finding that a failure to amend does 27 “not negate the determination 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 28 1 exception. To do so, his pleadings must contain a “plausible allegation that [he] faced 2 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 3 1055 (quoting 28 U.S.C. § 1915(g)). Imminent danger requires plausible allegations of 4 harm “ready to take place,” or “hanging threateningly over one’s head,” id. at 1056, and 5 must also “stem[] from the violations of law alleged in [the] complaint.” Ray v. Lara, 31 6 F.4th 692, 701 (9th Cir. 2022). The exception “functions as a limited safety valve,” id., 7 but it “cannot be triggered solely by complaints of past injury or generalized fears of 8 possible future harm.” Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 9 1317376, at *2 (S.D. Cal. Apr. 8, 2021). 10 Plaintiff’s Complaint fails to include any plausible allegations of imminent or 11 ongoing physical danger whatsoever. Instead, Plaintiff, who is now incarcerated at SATF, 12 claims MCRP officials in San Diego either lost or stole his property, including $977 in 13 cash and two checks in the amount of $1,957. (See Compl. at 3, 6.) Civil actions seeking 14 “only financial redress for allegedly lost property” clearly do not qualify for 15 Section 1915(g)’s imminent danger exception. Valentine v. USP Victorville, No. 5:25-CV- 16 03050-SVW-JDE, 2026 WL 194574, at *2 (C.D. Cal. Jan. 23, 2026); see also Braley v. 17 Hicks, No. 1:23-CV-0206-JLT-SAB PC, 2023 WL 4089118, at *1 (E.D. Cal. June 20, 18 2023) (finding the prisoner plaintiff’s allegations of the “loss of personal property” did not 19 satisfy the imminent danger of serious physical injury’ exception to Section 1915(g)). 20 Therefore, the Court finds Plaintiff is not entitled the “privilege” to proceed IFP in 21 this case. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); see also Harris, 863 22 F.3d at 1139 (“A negative consequence that may impact a prisoner who files [] frivolous 23 complaint[s] is a restriction on [his] ability to file future cases without prepaying filing 24

25 26 3 In fact, Plaintiff has been denied IFP privileges pursuant to Section 1915(g) in this Court since 2009. See Pittman v. Kenndy, et al., Case No. 3:09-cv-0544-JAH-RBB (S.D. Cal. May 6, 2009) (Order 27 denying motion to proceed IFP pursuant to 28 U.S.C. § 1915(g) and dismissing civil action) (ECF No. 8 at 3–4). Judge Houston’s Order further notes that as of November 2008, Plaintiff had filed “more than 28 1 || fees.”). Because Plaintiff did not pay the full $405 statutory and administrative filing fee 2 ||required by 28 U.S.C. § 1914(a) at the time he filed this case, his litigation history shows 3 ||he is no longer eligible to proceed IFP, and he does not allege to have faced imminent 4 ||danger of serious physical injury at the time of filing, his suit must be dismissed. See 5 || Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP 6 || application is denied altogether, Plaintiff's case [cannot] proceed|.]’’). 7 CONCLUSION 8 For the foregoing reasons, the Court DENIES Plaintiff's Motion to Proceed IFP 9 ||(ECF No. 2) as barred by 28 U.S.C. § 1915(g) and DISMISSES WITHOUT 10 || PREJUDICE this civil action based on Plaintiff's failure to pay the full $405 civil filing 11 || fee required by 28 U.S.C. § 1914(a). Unless Plaintiff pays the $405 civil filing fee within 12 || forty-five (45) days of the date this Order is filed, the Court will enter a final judgment of 13 || dismissal. 14 IT IS SO ORDERED. 15 Dated: March 31, 2026 —— (2 17 Honorable Todd W. Robinson 8 United States District Judge 19 20 21 22 23 24 25 26 27 28