1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, Case No.: 23-cv-1088-DMS-DEB CDCR #V-34099, 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 FOR FAILURE TO PAY K. ALLISON, et al., FILING FEE REQUIRED BY 16 28 U.S.C. § 1914(a) Defendants. 17 (ECF No. 2) 18
19 20 Plaintiff John Wesley Williams, proceeding pro se and incarcerated at Richard J. 21 Donovan Correctional Facility (“RJD”), has filed a civil rights action pursuant to 42 U.S.C. 22 § 1983. (See Compl., ECF No. 1.) Williams is a frequent litigator in California’s district 23 courts, and in his current pleading alleges that he was subjected to unconstitutional 24 conditions of confinement in December of 2022 and January of 2023 while housed at RJD. 25 (See id. generally.) 26 Williams did not pay the filing fee required to commence a new civil action; instead, 27 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 28 (See ECF No. 2.) However, because Williams has had far more than three civil actions or 1 appeals dismissed as frivolous or for failure to state a claim upon which relief can be 2 granted in the past, and does not allege facts to plausibly demonstrate imminent danger of 3 serious physical injury at the time he filed his Complaint in this action, the Court DENIES 4 his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g) and DISMISSES his case 5 without prejudice. Williams may still prosecute the claims alleged in this action—but to 6 do so he must tender a new Complaint to the Clerk of the Court together with the full $402 7 civil filing fee 28 U.S.C. § 1914(a) requires. 8 MOTION TO PROCEED IFP 9 I. Standard of Review 10 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 11 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Williams, however, “face 12 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 13 filing fee,” in monthly installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 14 Litigation Reform Act (“PLRA”) amended Section 1915 to preclude the privilege to 15 proceed IFP in cases where the prisoner: 16 . . . 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 17 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 18 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 19 20 28 U.S.C. § 1915(g); Coleman v. Tollefson, 575 U.S. 532, 535‒36 (2015). “This 21 subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398 22 F.3d 1113, 1116 n.1 (9th Cir. 2005); Coleman, 575 U.S. at 534. “Pursuant to § 1915(g), a 23 prisoner with three strikes or more cannot proceed IFP.” Andrews, 398 F.3d at 1116 n.1; 24 see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 25 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 26 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective 27 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 28 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); see also 1 Coleman, 575 U.S. at 535 (citing Jones v. Bock, 549 U.S. 199, 204 (2007)). 2 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 3 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 4 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 5 styles such dismissal as a denial of the prisoner’s application to file the action without 6 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 7 When courts “review a dismissal to determine whether it counts as a strike, the style of the 8 dismissal or the procedural posture is immaterial. Instead, the central question is whether 9 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 10 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 11 F.3d 607, 615 (4th Cir. 2013)). “A strike-call under Section 1915(g) [] hinges exclusively 12 on the basis for the dismissal.” Lomax v. Ortiz-Marquez, __ U.S. __, 140 S. Ct. 1721, 13 1724‒25 (2020). 14 II. Section 1915(g) Bar 15 Pursuant to Federal Rule of Evidence 201(c)(1), and based on a thorough review of 16 federal court docket proceedings publicly available on PACER,1 this Court finds that 17 Plaintiff John Wesley Williams, identified as CDCR Inmate #V-34099, while incarcerated, 18 has had seven prior prisoner civil actions or appeals dismissed on the grounds that they 19 were frivolous, malicious, or failed to state a claim upon which relief may be granted. 20 They are: 21 1) Williams v. Narramore, et al., Civil Case No. 2:03-cv-01972-UA-AJW (C.D. Cal., West. Div., July 25, 2003 Order denying IFP and dismissing case for “failure 22 23 24 1 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA- 25 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. 26 Cal. 2015). 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, 508 F.3d at 1225 27 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 28 1 to state a claim on which relief can be granted” pursuant to 28 U.S.C. § 1915
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, Case No.: 23-cv-1088-DMS-DEB CDCR #V-34099, 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 FOR FAILURE TO PAY K. ALLISON, et al., FILING FEE REQUIRED BY 16 28 U.S.C. § 1914(a) Defendants. 17 (ECF No. 2) 18
19 20 Plaintiff John Wesley Williams, proceeding pro se and incarcerated at Richard J. 21 Donovan Correctional Facility (“RJD”), has filed a civil rights action pursuant to 42 U.S.C. 22 § 1983. (See Compl., ECF No. 1.) Williams is a frequent litigator in California’s district 23 courts, and in his current pleading alleges that he was subjected to unconstitutional 24 conditions of confinement in December of 2022 and January of 2023 while housed at RJD. 25 (See id. generally.) 26 Williams did not pay the filing fee required to commence a new civil action; instead, 27 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 28 (See ECF No. 2.) However, because Williams has had far more than three civil actions or 1 appeals dismissed as frivolous or for failure to state a claim upon which relief can be 2 granted in the past, and does not allege facts to plausibly demonstrate imminent danger of 3 serious physical injury at the time he filed his Complaint in this action, the Court DENIES 4 his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g) and DISMISSES his case 5 without prejudice. Williams may still prosecute the claims alleged in this action—but to 6 do so he must tender a new Complaint to the Clerk of the Court together with the full $402 7 civil filing fee 28 U.S.C. § 1914(a) requires. 8 MOTION TO PROCEED IFP 9 I. Standard of Review 10 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 11 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Williams, however, “face 12 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 13 filing fee,” in monthly installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 14 Litigation Reform Act (“PLRA”) amended Section 1915 to preclude the privilege to 15 proceed IFP in cases where the prisoner: 16 . . . 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 17 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 18 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 19 20 28 U.S.C. § 1915(g); Coleman v. Tollefson, 575 U.S. 532, 535‒36 (2015). “This 21 subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398 22 F.3d 1113, 1116 n.1 (9th Cir. 2005); Coleman, 575 U.S. at 534. “Pursuant to § 1915(g), a 23 prisoner with three strikes or more cannot proceed IFP.” Andrews, 398 F.3d at 1116 n.1; 24 see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 25 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 26 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective 27 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 28 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); see also 1 Coleman, 575 U.S. at 535 (citing Jones v. Bock, 549 U.S. 199, 204 (2007)). 2 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 3 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 4 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 5 styles such dismissal as a denial of the prisoner’s application to file the action without 6 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 7 When courts “review a dismissal to determine whether it counts as a strike, the style of the 8 dismissal or the procedural posture is immaterial. Instead, the central question is whether 9 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 10 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 11 F.3d 607, 615 (4th Cir. 2013)). “A strike-call under Section 1915(g) [] hinges exclusively 12 on the basis for the dismissal.” Lomax v. Ortiz-Marquez, __ U.S. __, 140 S. Ct. 1721, 13 1724‒25 (2020). 14 II. Section 1915(g) Bar 15 Pursuant to Federal Rule of Evidence 201(c)(1), and based on a thorough review of 16 federal court docket proceedings publicly available on PACER,1 this Court finds that 17 Plaintiff John Wesley Williams, identified as CDCR Inmate #V-34099, while incarcerated, 18 has had seven prior prisoner civil actions or appeals dismissed on the grounds that they 19 were frivolous, malicious, or failed to state a claim upon which relief may be granted. 20 They are: 21 1) Williams v. Narramore, et al., Civil Case No. 2:03-cv-01972-UA-AJW (C.D. Cal., West. Div., July 25, 2003 Order denying IFP and dismissing case for “failure 22 23 24 1 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA- 25 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. 26 Cal. 2015). 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, 508 F.3d at 1225 27 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 28 1 to state a claim on which relief can be granted” pursuant to 28 U.S.C. § 1915(e) [ECF No. 6]) (strike one); 2
3 2) Williams v. Gonzer, Civil Case No. 2:04-cv-08941-UA-AJW (C.D. Cal., West. Div., Nov. 22, 2004 Order denying IFP and dismissing case for “failure to 4 state a claim upon which relief may be granted” pursuant to 28 U.S.C. 5 § 1915(e)(2)(B)(ii), § 1915A(b)(1)) [ECF No. 2]) (strike two);
6 3) Williams v. Young, Civil Case No. 2:08-cv-01737-WBS-CMK (E.D. Cal., 7 June 4, 2010 Findings and Recommendations [“F&R”] to dismiss Amended Complaint for failing to state a claim upon which relief may be granted pursuant to 8 28 U.S.C. § 1915A(b)(1), (2) [ECF No. 55]), (E.D. Cal. June 29, 2010 (Order 9 adopting F&R and dismissing case) [ECF No. 57] (strike three);
10 4) Williams v. Hubbard, et al., Civil Case No. 2:10-cv-01717-UA-FFM (C.D. 11 Cal., West. Div., July 6, 2010 Order denying IFP and dismissing case as “frivolous, malicious, or [for] fail[ing] to state a claim upon which relief may be granted.” [ECF 12 No. 3]) (strike four); 13 5) Williams v. Hubbard, et al., Ninth Circuit Appeal No. 10-56230 (Nov. 4, 2010 14 Order denying appellant’s motion to proceed IFP “because we find that the appeal 15 is frivolous.”) [DktEntry 6]); (Dec. 8, 2010 Order dismissing appeal for failure to prosecute) [DktEntry 7])2 (strike five); 16
17 6) Williams v. Harrington, et al., Civil Case No. 1:09-cv-01823-GSA (E.D. Cal. May 25, 2012 Order dismissing civil action with prejudice for failure to state a claim 18 upon which relief may be granted under section 1983 pursuant to 28 U.S.C. § 1915A 19 and 28 U.S.C. § 1915(e) [ECF No. 29]) (strike six); and
20 7) Williams v. Soto, et al., Ninth Circuit Appeal No. 14-15524 (May 14, 2014 21 Order denying appellant’s motion to proceed IFP “because we find that the appeal 22 23 24
25 26 2 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted a “strike” under 27 § 1915(g) “even though [it] did not dismiss the appeal until later when the [appellant] did not pay the filing fee.”). 28 1 is frivolous.”) [DktEntry 7]); (June 6, 2014 Order dismissing appeal for failure to prosecute) [Dkt Entry 9]) (strike seven).3 2 3 Accordingly, because Williams has accumulated more than three “strikes” permitted 4 by § 1915(g), he must make plausible allegations of imminent danger at the time he filed 5 his Complaint; otherwise, he is not entitled to the privilege of proceeding IFP. See 6 Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) 7 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 8 a history of abusing the legal system from continuing to abuse it while enjoying IFP 9 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 10 permission to proceed IFP is itself a matter of privilege and not right.”). 11 III. Imminent Danger Exception 12 Once a prisoner has accumulated three strikes, Section 1915(g) prohibits his pursuit 13 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 14 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 15 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 16 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 17 Lest the exception “swallow the rule,” the Ninth Circuit also “requires a nexus 18 between he imminent danger and the violations of law alleged in the complaint.” Ray v. 19 Lara, 31 F.4th 692, 701 (9th Cir. 2022). “Thus, in order to qualify for the § 1915(g) 20 imminent danger exception, a three-strikes prisoner must allege imminent danger of serious 21
22 23 3 The Court notes Williams has previously been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in this Court, and had his IFP status revoked in the Northern and Central Districts of California 24 as well. See Williams v. Neotti, et al., Civil Case No. 3:10-cv-02672-H-BGS (S.D. Cal. Jan. 12, 2011) 25 (ECF No. 3); Williams v. Soto, et al., Civil Case No. 4:12-cv-03583-YGR (PR) (N.D. Cal. March 7, 2014) (ECF No. 36); Williams v. Moore, et al., Civil Case No. 2:13-cv-09522-PSG-FFM (C.D. Cal., West. Div., 26 March 10, 2015) (R&R to deny IFP as barred by 28 U.S.C. § 1915(g) [ECF No. 58]); (C.D. Cal. West. Div. May 4, 2015) (Order adopting R&R [ECF No. 60]); and Williams v. Soto, Civil Case No. 2:15-cv- 27 01294-PSG-FFM (C.D. Cal., West. Div., Feb. 27, 2015 Order denying IFP as barred by 28 U.S.C. § 1915(g)) [ECF No. 5]. 28 1 || physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 2 redressable by the court.” Jd. 3 In Williams’ Complaint, he describes unsanitary conditions of confinement in 4 || December of 2022 and January of 2023. He does not allege that these conditions still exist 5 || at the time he filed this action on June 6, 2023. Thus, based on the allegations sworn in his 6 ||Complaint, the Court finds Williams has failed to demonstrate he is entitled to Section 7 || 1915(g)’s “imminent danger” exception. See Cervantes, 493 F.3d at 1055 (quoting 28 8 |U.S.C. § 1915(g)). 9 CONCLUSION 10 Accordingly, the Court DENIES Williams’s Motion to Proceed IFP (ECF No. 2) as 11 |/barred by 28 U.S.C. § 1915(g), DISMISSES this civil action without prejudice based on 12 || Williams’s failure to pay the civil filing fee required by 28 U.S.C. § 1914(a), CERTIFIES 13 an IFP appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. 14 1915(a)(3), and DIRECTS the Clerk of the Court to close the file. 15 IT IS SO ORDERED. 16 || Dated: June 27, 2023 > 17 a Yn: 18 Hon. Dana M. Sabraw, Chief Judge United States District Court 19 20 21 22 23 24 25 26 27 28 6 _