Opinion
Case No.: 3:18-cv-01655-CAB-JLB
09-25-2018
JARED BENJAMIN MIMMS, Booking #17141130, Plaintiff, v. STATE OF CALIFORNIA, Defendant.
ORDER DISMISSING CIVIL ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a) AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915A(b)(1)
JARED BENJAMIN MIMMS ("Plaintiff"), while detained at the San Diego Central Jail, and proceeding pro se, filed a two-paged Complaint against the State of California on July 16, 2018, claiming that the State is "going in for murder" and is "coming at" him. See Compl., ECF No. 1 at 1. Plaintiff further appears to charge the State with "Calexit" and "eugenics," and attaches an email from his friend Silas, who claims he is "genious" [sic] in the "online crypto currency market." Id. at 2.
Plaintiff has not prepaid the $400 filing fee required to commence civil action pursuant to 28 U.S.C. § 1914(a), nor has he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). ///
I. Failure to Pay Filing Fee or Request IFP Status
All parties instituting any civil action, suit or proceeding in any district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. --------
Plaintiff has not prepaid the $400 in filing and administrative fees required to commence a civil action, and he has not filed a Motion to Proceed IFP in compliance with 28 U.S.C. § 1915(a). Therefore, his civil action cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. And while the Court would ordinarily grant Plaintiff leave to file an IFP Motion pursuant 28 U.S.C. § 1915(a), it finds, for the reasons set out below, that doing so would be futile since he is no longer entitled to that privilege, he fails to plausibly allege he faced imminent danger of serious physical injury at the time he filed his Complaint, and his claims are legally frivolous.
II. 28 U.S.C. § 1915(g)'s "Three-Strikes" Bar
"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," however, "face an additional hurdle." Id. In addition to requiring prisoners to "pay the full amount of a filing fee" in installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP in cases where the 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) (hereafter "Andrews"). "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).
"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). Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal court unless he can show 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.").
III. Application to Plaintiff's Allegations
As an initial matter, the Court has reviewed Plaintiff's pleading and has ascertained that it contains no "plausible allegation" to suggest Plaintiff "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's entire Complaint is comprised of three nonsensical sentences in which he seeks either help or to "fire" the State of California for trying to "murder" him "for hire," and "doing Calexit and Eugenics at the same time to kill rich ugly." Compl., ECF No. 1 at 1. See In re Gonzalez, 2008 WL 666465 at *2-3 (N.D. Cal. March 6, 2008) (finding prisoner with a "delusional tale" of having a "special genetic structure," and being "irradiated ... by radioactive smoke" by "government scientists," did not plausibly allege "imminent danger of serious physical injury."); Holz v. McFadden, 2010 WL 3069745 at *3 (C.D. Cal. May 21, 2010) (finding "imminent danger" exception to § 1915(g) inapplicable where prisoner implausibly claimed the FBI and BOP were "going to kill him."); Sierra v. Woodford, 2010 WL 1657493 at *3 (E.D. Cal. April 23, 2010) (finding "long, narrative, rambling statements regarding a cycle of violence, and vague references to motives to harm" insufficient to show Plaintiff faced an "ongoing danger" as required by Cervantes).
If this were not enough, Plaintiff's claims are patently frivolous. See 28 U.S.C. § 1915A(b)(1) (requiring sua sponte dismissal of prisoner complaints, or any portions of them, which are "frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted."); Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015); Byrd v. Phoenix Police Dep't, 885 F.3d 639, 641 (9th Cir. 2018) (quoting 28 U.S.C. § 1915A(b)). "The purpose of § 1915A is to 'ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (internal citation omitted); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (a complaint "is frivolous if it has no arguable basis in fact or law.").
And while Defendants typically carry the initial burden to produce evidence demonstrating 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 takes judicial notice that Plaintiff Jared Benjamin Mimms, currently identified as San Diego County Sheriff Department Inmate Booking #17141130, has while incarcerated had three previous 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) Mimms v. Becerra, Civil Case No. 3:17-cv-02001-LAB-KSC (S. D. Cal., Nov. 16, 2017) (Order Denying Motion to Proceed IFP and Dismissing Civil Action as Frivolous pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3) (strike one);///
2) Mimms v. United States of America, Civil Case No. 3:17-cv-02539-LAB-BGS (S.D. Cal., Feb. 21, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil Action as Frivolous pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3) (strike two); and
3) Mimms v. Kevin Faulconer, et al., Civil Case No. 3:18-cv-01339-CAB-AGS (S.D. Cal., Sept. 11, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil Action as Frivolous pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 4) (strike three).
Accordingly, because Plaintiff has 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.").
IV. Conclusion and Order
For the reasons explained, the Court:
(1) DISMISSES this civil action sua sponte for failure to pay filing fees required by 28 U.S.C. § 1914(a) and as frivolous pursuant to 28 U.S.C. § 1915A(b)(1);
(2) CERTIFIES that an IFP appeal from this Order would also be frivolous and therefore, not 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
(3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to close the file.
IT IS SO ORDERED. Dated: September 25, 2018
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge