Heizelman v. Donahue et al

Filing 3

ORDER Denying 2 Motion to Proceed In Forma Pauperis as Barred by 28 U.S.C. §1915(g); and Dismissing Case for Failure to Pay Filing Fee Required by 28 U.S.C. §1914 (a). The Court hereby DENIES Plaintiffs Motion to Proceed IFP [ECF No. 2] pursuant to 28 U.S.C.§ 1915(g); DISMISSES this action without prejudice for failure to pay the $350 civil filing fee required by 28 U.S.C. § 1914(a); and 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 Anthony J. Battaglia on 04/13/11. (All non-registered users served via U.S. Mail Service)(cge)(mam).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT HADLEY HEIZELMAN,
BOP #20068-298
Inmate Booking No. 10797362,

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Civil No.

Plaintiff,

ORDER:

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(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 2]

vs.

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AND

WILLIAM DONAHUE, et al.,

(2) DISMISSING CASE FOR
FAILURE TO PAY FILING
FEE REQUIRED BY
28 U.S.C. § 1914(a)

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11-0694 AJB (PCL)

Defendants.

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Plaintiff, a former federal prisoner currently detained at the San Diego County Jail

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(SDCJ) and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has

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submitted a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF

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No. 2].

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I.

Motion to Proceed IFP

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

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litigation IFP, that is, without the full prepayment of fees or costs. 28 U.S.C. § 1915(a)(2).

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However, the Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the

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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.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.”

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Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”). “Pursuant to

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§ 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews v.

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Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the PLRA,

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“[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP

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status under the three strikes rule[.]”).

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congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers,

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128 F.3d 1310, 1312 (9th Cir. 1997).

The objective of the PLRA is to further “the

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were

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dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”

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Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles

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such dismissal as a denial of the prisoner’s application to file the action without prepayment of

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the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has

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accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP

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action in federal court unless he can show he is facing “imminent danger of serious physical

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injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception

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for IFP complaints which “make[] a plausible allegation that the prisoner faced ‘imminent

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danger of serious physical injury’ at the time of filing.”).

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II.

Application of 28 U.S.C. § 1915(g)

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As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has

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ascertained that there is no “plausible allegation” to suggest Plaintiff “faced ‘imminent danger

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of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28

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U.S.C. § 1915(g)). In his Complaint, Plaintiff alleges that force was used against him while he

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was in the El Cajon Courthouse, when he was formerly housed at the Metropolitan Correctional

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Center and when he resided in Iowa.

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A court “‘may take notice of proceedings in other courts, both within and without the

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federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias

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v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d

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801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens

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Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court takes judicial

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notice that Plaintiff has had three prisoner civil actions dismissed on the grounds that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted.

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They are:

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1)

Heizelman v. Martin, et al., Civil Case No. 1:07-cv-00288-EJL (D. Idaho Dec.

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11, 2007 Initial Review Order dismissing complaint for failing to state cognizable

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constitutional claims pursuant to 28 U.S.C. § 1915(e)(2)(B) [ECF No. 5]);

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(March 19, 2009 Order granting Motion to amend and dismissing amended

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complaint) [ECF No. 7]) (strike one);

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2)

Heizelman v. Richardson, et al., Civil Case No. 1:09-cv-00182-BLW (D. Idaho

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Oct. 16, 2009 Initial Review Order dismissing complaint for failing to state a

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claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) [ECF No. 10]; (May 24, 2010

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Order dismissing case [ECF No. 14]) (strike two); and,

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3)

Heizelman, et al., v. Durham, et al., Civil Case No. 3:10-cv-01560-BTM (WMc)

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(S.D. Cal. Sept. 20, 2010 Order sua sponte dismissing Complaint as frivolous

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pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) [Doc. No. 14]) (strike three).

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Accordingly, because Plaintiff has, while incarcerated, accumulated three “strikes”

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pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced imminent

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danger of serious physical injury at the time he filed his Complaint, he is not entitled to the

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privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169

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F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing

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the courts; it only precludes prisoners with a history of abusing the legal system from

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continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221,

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1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not

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right.”).

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III.

Conclusion and Order

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For the reasons set forth above, the Court hereby:

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1)

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DENIES Plaintiff’s Motion to Proceed IFP [ECF 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,

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would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United

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States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977)

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(indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: April 13, 2011

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Hon. Anthony J. Battaglia
U.S. District Judge

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