Gonzales v. Francisco et al

Filing 11

ORDER VACATING Order Granting Leave to Proceed In Forma Pauperis and Directing Clerk of Court to Serve Order on CDCR Director and U.S. District Court Financial Department; ORDER DISMISSING Action, without prejudice, pursuant to 28:1915(G), signed by Magistrate Judge Sheila K. Oberto on 04/1/2013. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JIMMY O. GONZALES,

CASE NO. 1:12-cv-01786-SKO PC

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Plaintiff,

ORDER VACATING ORDER GRANTING
LEAVE TO PROCEED IN FORMA PAUPERIS
AND DIRECTING CLERK OF COURT TO
SERVE ORDER ON CDCR DIRECTOR AND
U.S. DISTRICT COURT FINANCIAL
DEPARTMENT

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v.
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T. FRANCISCO, et al.,
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Defendants.
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(Doc. 4)

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, PURSUANT TO 28 U.S.C. §
1915(G)

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(Doc. 1)
/

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Plaintiff Jimmy O. Gonzales, # D-68831, is a state prisoner proceeding pro se. Plaintiff filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on November 1, 2012, and on November 6,

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2012, the Court granted Plaintiff’s motion seeking leave to proceed in forma pauperis. However,

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following a review of cases filed by Plaintiff in the Northern District of California, it is now apparent

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that Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while

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incarcerated or detained in any facility, brought an action or appeal in a court of the United States

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

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relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”

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The Court may take judicial notice of court records, United States v. Howard, 381 F.3d 873,

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876 n.1 (9th Cir. 2004), and it takes judicial notice of Gonzales v. Correctional Officer, et al., case

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number 3:07-cv–02373-MHP, in which the United States District Court for the Northern District of

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California issued an order to show cause in eight civil cases on January 22, 2008, In re Gonzales,

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Nos. C 07-2373 MHP (pr), C 07-3166 (MHP (pr), C 07-3289 MHP (pr), C 07-3517 MHP (pr), C 071

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3691 MHP (pr), C 07-3978 MHP (pr), C 07-4019 MHP (pr), C 07-5427 MHP (pr), 2008 WL

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205280, at *1-2 (N.D. Cal. Jan. 22, 2008). The order identified Plaintiff’s various aliases as James

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Patrick Gonzales, Jimmy Otero Gonzales, and James Lara Gonzales; and it required him to show

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cause why he should not be denied in forma pauperis status.1 In re Gonzales, 2008 WL 205280, at

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*1-2.

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Following Plaintiff’s response to the order to show cause, the court issued a “three strikes

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order” on March 6, 2008, finding that the following Northern District of California cases count as

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strikes under section 1915(g): Gonzales v. USA, et al., case number 3:98-cv-03060-MHP (dismissed

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on Sept. 9, 1998, as frivolous; no appeal filed); Gonzales v. Doe, case number 3:99-cv-05290-MHP

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(dismissed on Jan. 25, 2000, for failure to state a claim; no appeal filed); Gonzales v. Santa Clara

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Dept. of Corr., et al., case number 3:00-cv-02461-MHP (dismissed on Aug. 4, 2000, as frivolous and

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malicious; no appeal filed); and Gonzales v. Evans, et al., case number 5:06-cv-03108-JW

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(dismissed on Feb. 21, 2007, for failure to state a claim; appeal dismissed on Oct. 10, 2007, for lack

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of jurisdiction).2

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Accordingly, prior to the date he filed this action, Plaintiff had four strikes under section

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1915(g), Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011) (dismissals must be final

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before they count as strikes), and he is precluded from proceeding in forma pauperis unless, at the

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time he filed suit, he was in imminent danger of serious physical injury, Andrews v. Cervantes, 493

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F.3d 1047, 1053 (9th Cir. 2007).

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Plaintiff’s claims in this action arise out of events which occurred in August 2012. Plaintiff

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alleges that without provocation or justification, he was sprayed with pepper spray on August 29,

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2012, and August 30, 2012, and beaten by officers on August 30, 2012; and he was falsely charged

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W ith respect to Plaintiff’s aliases, Plaintiff has filed suit in the Eastern District of California using the
names James Gonzales, Jimmy Gonzales, Jimmy O. Gonzales, and Jimmy Otero Gonzales, all under CDCR # D68831, which is the same CDCR identification number listed for James Patrick Gonzales in Gonzales v. Correctional
Officer, et al., case number 3:07-cv-02373-MHP.

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Plaintiff did not appeal the three strikes order and dismissal in any of the eight cases.

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with rules violations to cover up the incidents of excessive force. Thus, the Court finds that

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Plaintiff’s complaint does not set forth any plausible allegations that at the time suit was filed,

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Plaintiff was facing imminent danger of serious physical injury, and Plaintiff is not eligible to

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proceed in forma pauperis in this action. Andrews, 493 F.3d at 1055-56. The order granting

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Plaintiff’s application for leave to proceed in forma pauperis shall be vacated, and this action shall

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be dismissed, without prejudice to refiling with the $350.00 filing fee.3

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff is ineligible to proceed in forma pauperis in this action pursuant to 28 U.S.C.
§ 1915(g) and the order granting him leave to proceed in forma pauperis is

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VACATED;

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2.

The Clerk of the Court shall serve a copy of this order on (1) the Director of the

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California Department of Corrections and Rehabilitation and (2) the Financial

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Department, U.S. District Court, Eastern District of California, Fresno Division; and

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3.

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This action is dismissed, without prejudice to refiling accompanied by the $350.00
filing fee.

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IT IS SO ORDERED.

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Dated:
ie14hj

April 1, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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The Court elects to dismiss the action rather than provide Plaintiff with a limited opportunity to pay the
filing fee, as there is no prejudice to Plaintiff. Plaintiff has no funds, the full $350.00 filing fee balance remains
unpaid in this case, and at a minimum, Plaintiff has two years from the date his claims accrued in August 2012 to file
suit. Cal. Civ. Proc. Code § 335.1 (W est 2013) (two year statute of limitations); Jones v. Blanas, 393 F.3d 918, 927
(2004); Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004); see also Cal. Civ. Proc. Code § 352.1 (W est
2013) (two year tolling provision afforded to prisoners serving sentences less than life without the possibility of
parole). Further, Plaintiff’s litigation tactics do not warrant that discretionary courtesy. Plaintiff’s misrepresentation,
made under penalty of perjury, that he brought only one other action initially led the Court to overlook Plaintiff’s
three strikes status. In this district alone, Plaintiff has in fact filed twenty actions, although none of the dismissals
count as strikes under section 1915(g).

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