Williams v. Allison

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 John Wesley WILLIAMS, Case No.: 24-cv-1382-AGS-AHG

5 Plaintiff, ORDER DENYING MOTION TO 6 v. PROCEED IN FORMA PAUPERIS (ECF 2), DISMISSING 7 Kathleen ALLISON, et al., COMPLAINT, AND CLOSING CASE 8 Defendants. 9

10 John Wesley Williams, an unrepresented state prisoner suing defendants for civil- 11 rights violations under 42 U.S.C. § 1983, moves to proceed in forma pauperis. For the 12 reasons below, that motion is denied, and the complaint is dismissed without prejudice. 13 DISCUSSION 14 Typically, parties instituting a civil action in a United States district court must pay 15 filing fees of $405.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 16 pauperis, plaintiffs need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 17 (9th Cir. 1999). Prisoners like Williams, however, “face an additional hurdle.” Moore v. 18 Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). To further “the 19 congressional goal of reducing frivolous prisoner litigation in federal court,” prisoners 20 cannot proceed IFP once they “have, while incarcerated, on 3 or more prior occasions had 21 claims dismissed due to their frivolity, maliciousness, or failure to state a claim.” Tierney 22 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997) (cleaned up); see also 28 U.S.C. § 1915(g) 23 (“In no event shall a prisoner bring a civil action under this section if the prisoner has, on 24 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative fee 28 1 or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to 2 state a claim upon which relief may be granted, unless the prisoner is under imminent 3 danger of serious physical injury.”). 4 When courts review a dismissal to determine whether it counts as one of these three 5 strikes, “the style of the dismissal or the procedural posture is immaterial” because “the 6 central question is whether the dismissal rang the PLRA [Prison Litigation Reform Act] 7 bells of frivolous, malicious, or failure to state a claim.” El-Shaddai v. Zamora, 833 F.3d 8 1036, 1042 (9th Cir. 2016) (cleaned up). Prior cases are considered strikes, then, “even if 9 the district court styles such dismissal as denial of the prisoner’s application to file the 10 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 11 (9th Cir. 2008). Defendants typically carry the initial burden to produce evidence 12 demonstrating a prisoner is not entitled to proceed IFP for having three strikes, but “in 13 some instances, the district court docket may be sufficient to show that a prior dismissal 14 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” 15 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 16 Williams, while incarcerated, has had seven prior prisoner civil actions or appeals 17 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 18 which relief may be granted. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) 19 (holding that “a court may take judicial notice of its own records in other cases, as well as 20 the records of [different courts] in other cases.”). These are: Williams v. Narramore, 21 No. 03-cv-1972-UA-AJW (C.D. Cal., West. Div., July 25, 2003) (strike one); Williams v. 22 Gonzer, No. 04-cv-8941-UA-AJW (C.D. Cal., Nov. 22, 2004) (strike two); Williams v. 23 Young, No. 08-cv-01737-WBS-CMK (E.D. Cal., June 4, 2010) (strike three); Williams v. 24 Hubbard, No. 10-cv-1717-UA-FFM (C.D. Cal., July 6, 2010) (strike four); Williams v. 25 Hubbard, Ninth Circuit Appeal No. 10-56230 (Nov. 4, 2010) (strike five); Williams v. 26 Harrington, No. 09cv1823-GSA (E.D. Cal. May 25, 2012) (strike six); and Williams v. 27 Soto, Ninth Circuit Appeal No. 14-15524 (May 14, 2014) (strike seven). 28 1 Nor does Williams meet the “imminent danger of serious physical injury” exception 2 ||under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 3 || to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 4 1047, 1056 (9th Cir. 2007) (cleaned up). It “cannot be triggered solely by complaints of 5 || past injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 21- 6 || cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned up). 7 || Williams seeks money damages for the defendants’ alleged failure to adequately maintain 8 || the plumbing system which has resulted in past instances of allegedly unsanitary conditions 9 confinement and potentially similar instances in the future if plumbing repairs are not 10 ||made. (See ECF 1, at 1-15.) Nothing in his complaint satisfies the imminent-danger 11 || exception. 12 CONCLUSION 13 Thus, Williams’s motion to proceed in forma pauperis (ECF 2) is DENIED as barred 14 || by 28 U.S.C. § 1915(g). The action is DISMISSED WITHOUT PREJUDICE for failure 15 ||to pay the statutory and administrative $405 civil filing fees required by 28 U.S.C. 16 1914(a). Williams’s request for judicial notice (ECF 4) is DENIED AS MOOT. The 17 || Clerk of Court is directed to close this case. The Court also “certifies in writing” that an in 18 ||forma pauperis appeal of this order would be frivolous and “not taken in good faith.” 19 U.S.C. § 1915(a)(3). 20 || Dated: October 3, 2024 21 = | f. 07 Andrew G. Schopler United States District Judge 23 24 25 26 27 28 3 a me