Opinion
Case No.: 3:17-cv-02457-CAB-JLB
02-06-2018
BOBBY GENE GLOVER, CDCR #K-46066, Plaintiff, v. PARAMO, Warden; DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, Defendants.
ORDER:
1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF No. 2]
AND
2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a)
BOBBY GENE GLOVER ("Plaintiff"), a prisoner incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 6, 2017. See Compl., ECF No. 1.
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) to commence a civil action at the time of filing; instead, he has filed a Motion for Leave to proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Plaintiff has since filed supplemental documentation, including updated copies of his prison trust account records, in support of his Motion to Proceed IFP (ECF Nos. 4, 7).
I. Motion to Proceed IFP
"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, "face an additional hurdle." Id. In addition to requiring prisoners to "pay the full amount of a filing fee," in "monthly installments" or "increments" as provided by 28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels, ___ U.S. ___, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP:
. . . 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 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). "This subdivision is commonly known as the 'three strikes' provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
"Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter "Cervantes") (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]"). The objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner litigation in federal court." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). "[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date." Id. at 1311.
"Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that they were frivolous, malicious, or failed to state a claim," Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even if the district court styles such dismissal as a denial of the prisoner's application to file the action without prepayment of the full filing fee." O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when court "review[s] a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal 'rang the PLRA bells of frivolous, malicious, or failure to state a claim.'") (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP civil action or appeal in federal court unless he alleges he is facing "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)'s exception for IFP complaints which "make[] a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing.").
"The exception's use of the present tense, combined with its concern only with the initial act of 'bring[ing]' the lawsuit, indicates to us that the exception applies if the danger existed at the time the prisoner filed the complaint." Id. at 1053 (citing United States v. Jackson, 480 F.3d 1014, 1018-19 (9th Cir. 2007) (noting the use of tenses in statutes generally is significant and "one would not refer in the present tense to something that had already happened" (citing The Dictionary Act, 1 U.S.C. § 1)). "In other words, the availability of the exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time." Id. at 1053.
II. Discussion
As an initial matter, the Court has carefully reviewed Plaintiff's Complaint, and has ascertained that it does not contain any "plausible allegations" to suggest he "faced 'imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)).
Instead, Plaintiff claims the Warden of RJD and the Director of the California Department of Corrections ("CDC") have failed to "operate in compliance with" various provisions of Title 15 of the California Code of Regulations and the CDC's "Operations Manual" insofar as they have refused to provide him, and other inmates and parolees, with "qualified assistance" for their "legal problems." See ECF No. 1 at 1.
Nothing in Plaintiff's Complaint, however, plausibly suggests he faced any ongoing or "imminent danger of serious physical injury" at the time he filed his Complaint on December 6, 2017. See 28 U.S.C. § 1915(g); Byrd v. Dir. of Corr., No. 3:15-CV-2339-GPC-KSC, 2016 WL 773229, at *2 (S.D. Cal. Feb. 29, 2016) (finding prisoner's allegations of having been denied access to court and discriminated against based on race and religion insufficient to invoke § 1915(g)'s imminent danger exception); Pierce v. Obama, No. 14-CV-0691 BEN KSC, 2014 WL 4959030, at *3 (S.D. Cal. Oct. 2, 2014) (citing Skillern v. Edenfield, No. CV-610-044, 2010 WL 5638731, at *2 (S.D. Ga. Dec. 21, 2010) (allegations of improper interference with mail affecting prisoner's access to court are "plainly inadequate" to bring his case within the imminent danger exception in section 1915(g)); Ball v. Allen, No. 06-496-CG, 2007 WL 484547, at *2 (S.D. Ala. Feb.8, 2007) (finding claims of denial of access to court, obstruction of justice, and interference with outgoing mail did not result in imminent danger that may result in serious physical harm)).
And while Defendants typically carry the burden to show that a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, "in some instances, the district court docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike." Id. at 1120. That is the case here.
A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm't Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and "'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, 1225 (9th Cir. 2007) (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).
Therefore, this Court finds that Plaintiff Bobby Gene Glover, identified as CDCR #K-46066, has had three prior prisoner civil actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted.
They are:
1) Glover v. Evans, Civil Case No. 3:07-cv-02731-JSW (N.D. Cal., Oct. 15, 2007 Order of Dismissal pursuant to 28 U.S.C. § 1915A(b)) ("Plaintiff's complaint fails to state a claim under § 1983 and must be DISMISSED.") (ECF No. 11 at 3) (strike one);
2) Glover v. Yates, Civil Case No. 1:10-cv-00580-SKO (E.D. Cal., Nov. 12, 2010 Order Dismissing Claims pursuant to 28 U.S.C. § 1915A(b)) ("Plaintiff's complaint fails to state a claim upon which relief can be granted.") (ECF No. 18 at 4), see also ECF No. 24 (Order of USCA in Ninth Circuit Appeal No. 10-17704 summarily affirming district court's judgment) (strike two); and
3) Glover v. Evans, et al., Civil Case No. 3:07-cv-01759-JSW (N.D. Cal., Dec. 5, 2011 Order Granting Motion to Dismiss for failing to state a claim pursuant to Fed. R. Civ. P. 12(b)(6)) (ECF No. 57) (strike three).
Accordingly, because Plaintiff has, while incarcerated, accumulated three "strikes" pursuant to § 1915(g), and he fails to make a "plausible allegation" that he faced imminent danger of serious physical injury at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) "does not prevent all prisoners from accessing the courts; it only precludes prisoners with a history of abusing the legal system from continuing to abuse it while enjoying IFP status"); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) ("[C]ourt permission to proceed IFP is itself a matter of privilege and not right."). ///
III. Conclusion and Order
For the reasons set forth above, the Court:
1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g);
2) DISMISSES this civil action without prejudice based on Plaintiff's failure to prepay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a);
3) CERTIFIES that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous); and
4) DIRECTS the Clerk of Court to close the file.
IT IS SO ORDERED. Dated: February 6, 2018
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge