Opinion
Case No.: 3:16-cv-00619-BEN-KSC
06-13-2016
DAVID B. TURNER, Jr., Booking No. 15780644, Plaintiff, v. GEORGE BAILEY DETENTION FACILITY, et al., 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)
Plaintiff David B. Turner, Jr., currently incarcerated at George Bailey Detention Facility ("GBDF") in San Diego, California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
Plaintiff claims GBDF, the County of San Diego Sheriff's Department, the San Diego County Jail, the State of California, and an unidentified San Diego County Sheriff's Deputy violated his Eighth and Fourteenth Amendment rights on December 13, 2015, January 12, 2016, and January 14, 2016, by subjecting him to "overcrowding," applying handcuffs too tightly, and by subjecting him to "sexual harassment and intimidation" which caused him to "flashback [to] 12/3/13." (ECF No. 1 at 2-5.) Plaintiff seeks injunctive relief preventing the County "from continuing to deny" his rights, as well as $17 million in general and punitive damages for his pain and suffering. (Id. at 7.)
The Court takes judicial notice that Plaintiff has several other civil rights actions currently pending before this Court, most of which also involve claims of excessive force, the denial of medical care, and unconstitutional conditions of confinement against the City and County of San Diego and County Sheriff's Department officials, but arising during previous periods of arrest, detention, or incarceration in 2013. See, e.g., Turner v. San Diego Central Jail, No. 3:13-cv-1133-WQH-BGS (S.D. Cal. May 10, 2013); Turner v. City of San Diego Police Dep't, No. 3:13-cv-2124-DMS-JMA (S.D. Cal. Sept. 10, 2013); Turner v. County of San Diego, No. 3:14-cv-2003-JAH-JLB (S.D. Cal. Aug. 25, 2014).
Plaintiff has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP"). (ECF No. 2.)
I.
MOTION TO PROCEED IFP
"[A] federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses." Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015). "All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cnty. 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" as provided by 28 U.S.C. § 1915(b)(2), Bruce v. Samuels, 136 S. Ct. 627, 629 (2016), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP:
[I]f [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).
"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." Id. at 1116 n.1 (internal quotations omitted). 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." 28 U.S.C. § 1915(g). 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).
II.
APPLICATION TO PLAINTIFF
As an initial matter, the Court has carefully reviewed Plaintiff's Complaint and has ascertained that it does not contain "plausible allegations" which suggest he "faced 'imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047,1055 (9th Cir. 2007) [hereinafter Cervantes] (quoting 28 U.S.C. § 1915(g)). Instead, Plaintiff complains generally about overcrowding and having been subject to verbal sexual innuendo and harassment by unidentified GBDF officials during a strip search in December 2015 and again during a meal in January 2016. (ECF No. 1 at 3-5.) Nothing in his Complaint plausibly suggests Plaintiff faced any danger of imminent serious physical injury when he filed his Complaint on March 10, 2016. See Cervantes, 493 F.3d at 1053 ("[T]he availability of [§ 1915(g)'s imminent danger] exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time.").
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 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)).
Thus, this Court takes judicial notice that Plaintiff, David B. Turner, Jr., currently identified as San Diego County Sheriff's Department Booking No. 15780644, has brought, while incarcerated, more than three prior civil actions and appeals which were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
A review of David B. Turner Jr.'s previous cases in PACER shows he has also been previously identified as CDCR Inmate No. G-30643 and as San Diego County Inmate Booking No. 13719099.
They are:
1) Turner v. Metro. Transit Sys., No. 3:09-cv-00770-AJB-KSC (S.D. Cal. Nov. 11, 2009) (Order denying amended motion to proceed IFP and dismissing amended complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)) (ECF No. 6) (strike one);
2) Turner v. Corporal Saunder (7294), No. 3:13-cv-01368-MMA-DHB (S.D. Cal. June 18, 2013) (Order dismissing action as frivolous pursuant to 28 U.S.C. § 1915A(b) and denying motion to proceed IFP as moot) (ECF No. 3) (strike two);
3) Turner v. County of San Diego, No. 3:13-cv-02288-LAB-RBB (S.D. Cal. July 11, 2014) (Order sua sponte dismissing First Amended Complaint for failing to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A(b)) (ECF No. 7) (strike three); and
Plaintiff filed an appeal of this Order to the Ninth Circuit Court of Appeals. (ECF No. 9.) The Ninth Circuit denied appellant's motion to proceed IFP because it found that "there [wa]s no non-frivolous issue presented in th[e] appeal." (ECF No. 13.) The appeal was later dismissed based on Plaintiff's failure to perfect his appeal. (ECF No. 14.)
4) Turner v. County of San Diego, No. 3:13-cv-02729-JLS-PCL (S.D. Cal. Nov. 19, 2014) (Order granting IFP and sua sponte dismissing First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)) (ECF No. 13); (March 20, 2015 Order dismissing case in its entirety for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and for failing to prosecute) (ECF No. 14) (strike four).
Plaintiff appealed the dismissal to the Ninth Circuit Court of Appeals. (ECF No. 16.) The Ninth Circuit denied appellant's motion to proceed IFP "because [it found] that the appeal [wa]s frivolous." (ECF No. 20.) The appeal was later dismissed based on Plaintiff's failure to perfect his appeal. (ECF No. 21.) --------
Accordingly, because Plaintiff has, while incarcerated, accumulated at least four "strikes" as defined by § 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 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").
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 sua sponte without prejudice for failing to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); and
(3) CERTIFIES that an IFP appeal from this Order would 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).
The Clerk shall close the file.
IT IS SO ORDERED. Dated: June 13, 2016
/s/_________
HON. ROGER T. BENITEZ
United States District Judge