Woodall v. Schwarzenegger et al

Filing 5

ORDER: Denying 2 Motion for Leave to Proceed in forma pauperis; And Dismissing Civil Action For Failing to Pay Civil Filing Fee Required by 28 U.S.C. § 1914(a). For the reasons stated herein, the Court hereby: 1) Denies Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C.§ 1915(g); 2) Dismisses this action without prejudice for failure to pay the $350 civil filing fee required by 28 U.S.C. § 1914(a); and 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). The Clerk shall close the file. Signed by Judge Michael M. Anello on 8/16/2010. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SHAWN WOODALL, CDCR #F-91270, Plaintiff, vs. ARNOLD SCHWARZENEGGER, et al., Defendants.

Civil No. ORDER:

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1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [Doc. No. 2] AND 2) DISMISSING CIVIL ACTION FOR FAILING TO PAY CIVIL FILING FEE REQUIRED BY 28 U.S.C. § 1914(a)

Plaintiff, a state prisoner proceeding pro se and currently incarcerated at Richard J. Donovan Correctional Facility in San Diego, California,1 has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has filed a Complaint that is nearly 200 hundred pages long and attached more than 1400 pages of exhibits. Plaintiff also has not prepaid the $350 civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
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I.

Motion to Proceed IFP Section 1915 of Title 28 of the United States Code allows certain litigants to pursue civil

litigation IFP, that is, without the full prepayment of fees or costs. 28 U.S.C. § 1915(a)(2). However, the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP: . . . if 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."). ///
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II.

Application of 28 U.S.C. § 1915(g) As an initial matter, the Court has carefully reviewed Plaintiff's Complaint and has

ascertained that there is 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)). 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)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court takes judicial notice that Plaintiff has had at least three prisoner civil actions dismissed as frivolous, malicious, or for failing to state a claim in the Southern District of California. They are: 1) Woodall v. Imperial County Sheriff's Dep't, Civil Case No. 00-2584 JM (LSP) (S.D. Cal. Mar. 5, 2001) (Order dismissing complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A) (strike one); 2) Woodall v. U.S. Marshal Service, et al., Civil Case No. 01-0179 BTM (LAB) (S.D. Cal. Mar. 17, 2001) (Order dismissing complaint as frivolous pursuant to 28 U.S.C. § 1915A) (strike two); 3) Woodall v. C. Trujillo, et al., Civil Case no. 01-0004 BTM (CGA) (S.D. Cal. Apr. 17, 2001) (Order dismissing complaint as frivolous pursuant to 28 U.S.C. § 1915A) (strike three); 4) Woodall v. California Forensic Medical Group, Civil Case no. 01-0180 BTM (LAB) (S.D. Cal. Apr. 17 2001) (Order dismissing complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A) (strike four). Accordingly, because Plaintiff has, while incarcerated, accumulated at least 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
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to the privilege of proceeding IFP in this action. 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."). III. Conclusion and Order For the reasons set forth above, the Court hereby: 1) DENIES Plaintiff's Motion to Proceed IFP [Doc. No. 2] pursuant to 28 U.S.C. § 1915(g); 2) DISMISSES this action without prejudice for failure to pay the $350 civil filing fee required by 28 U.S.C. § 1914(a); and 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). The Clerk shall close the file.
IT IS SO ORDERED.

DATED: August 16, 2010

Hon. Michael M. Anello United States District Judge

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