Opinion
24-cv-1692-RSH-DEB
10-25-2024
FERDINAND REYNOLDS, CDCR #D-11772, Plaintiff, v. VINCENT MCSEE, Litigation Coordinator, Defendant.
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)
HON. ROBERT S. HUIE, UNITED STATES DISTRICT JUDGE
Plaintiff Ferdinand Reynolds, a state prisoner incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights action under: 42 U.S.C. §1983. ECF No. 1. Plaintiff claims Defendant refused to allow him to appear at » a small claims court hearing via video rather than telephonically as needed to accommodate' his hearing disability. ECF No. 1 at 4-6. Plaintiff has also filed a Motion to Proceed In: Forma Pauperis (“IFP”). ECF No. 2.
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), 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). “Once a prisoner has accumulated three strikes, he is prohibited by § 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 1055 (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.”). “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 fail[ed] to state a claim,'” Andrews, 398 F.3d at 1116 n.1, “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). When courts “review 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.'” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
While Defendants typically carry the initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district court docket may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That is the case here. A court may take judicial notice of its own records, see Molus v. Swan, No. 05cv00452-MMA (WMC), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)), 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)).
Based on a review of its own docket and other court proceedings available on PACER, the Court finds that, while incarcerated, plaintiff Ferdinand Reynolds, identified as CDCR Inmate #D-11772, has had at least three prior civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. They are:
(1) Reynolds v. Garcia, et al., Ninth Circuit Appeal No. 04-56808 (Feb. 15, 2005 Order denying appellant's motion to proceed IFP because appeal is frivolous) [Dkt. Entry 5]; (April 1, 2005 order dismissing appeal for failure to prosecute) [Dkt. Entry 8] (strike one);
(2) Reynolds v. Director of Corrections, Civil Case No. 5:06-cv-01604-JF (N.D. Cal. Nov. 17, 2008) (order dismissing action for failure to state a cognizable claim for relief) (strike two);
(3) Reynolds v. Major, et al., Civil Case No. 3:10-cv-05917-CRB (N.D. Cal. Nov. 17, 2011) (order of dismissal for failing to state a claim) (strike three).
See Richey v. Dunn, 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 § 1915(g) “even though [it] did not dismiss the appeal until later when the [appellate] did not pay the filing fee”).
See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a claim, and (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”)
Accordingly, because Plaintiff has, while incarcerated, accumulated at least three “strikes” as defined by § 1915(g), he is not entitled to proceed IFP in this action unless he makes a “plausible allegation” that he faced imminent danger of serious physical injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (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.”).
Plaintiff does not meet the “imminent danger of serious physical injury” exception under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready to take place” or “hanging threateningly over one's head.” Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007). It “cannot be triggered solely by complaints of past injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021). In this action Plaintiff seeks damages for Defendant's refusal to allow him to appear at a small claims court hearing via video rather than telephonically in order to lip read as needed to accommodate his hearing disability. ECF No. 1 at 4-6. It is clear Plaintiff has not satisfied the imminent danger of serious physical injury requirement in order to proceed IFP in this case.
II. Conclusion and Orders
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 $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a);
3. CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. § 1915(a)(3); and
4. DIRECTS the Clerk of the Court to close the file.
IT IS SO ORDERED.