Thornton v. Harris et al

Filing 6

ORDER: (1) Denying Motion To Proceed In Forma Pauperis As Barred By 28 U.S.C. Section 1915(g) (Re Doc. 2 ) And (2) Dismissing Case For Failure To Pay Filing Fee Required By 28 U.S.C. Section 1914(a): The Clerk shall close the file. Signed by Judge William Q. Hayes on 7/25/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,
CDCR #V-64547

Civil No.
Plaintiff,

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ORDER:
(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

KAMALA HARRIS;
MATTHEW CATE,

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11cv1525 WQH (BGS)

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

Defendant.

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Plaintiff, a state prisoner proceeding pro se and currently incarcerated at the California

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Correctional Institution in Tehachapi, California, initially filed this civil rights action pursuant

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to 42 U.S.C. § 1983 in the Eastern District of California. On July 11, 2011, Magistrate Judge

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Gerald B. Cohn determined that the issues brought by Plaintiff arose from events that occurred

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in the Southern District of California. Thus, the matter was transferred to the Southern District

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of California on July 11, 2011.

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

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

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[ECF No. 2].

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I.

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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:

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. . . 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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While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his

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request to proceed IFP, Andrews, 398 F.3d at 1119, “[i]n some instances, the district court docket

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records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under

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§ 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28 U.S.C. § 1915(g),

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however, the court must “conduct a careful evaluation of the order dismissing an action, and

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other relevant information,” before determining that the action “was dismissed because it was

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frivolous, malicious or failed to state a claim,” since “not all unsuccessful cases qualify as a

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strike under § 1915(g).” Id. at 1121.

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The Ninth Circuit has held that “the phrase ‘fails to state a claim on which relief may be

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granted,’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure

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12(b)(6).’” Id. (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews

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further holds that a case is “frivolous” for purposes of § 1915(g) “if it is of little weight or

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importance” or “ha[s] no basis in law or fact.” 398 F.3d at 1121 (citations omitted); see also

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Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual

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allegations and legal conclusions, is frivolous [under 28 U.S.C. § 1915] where it lacks an

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arguable basis in either law or in fact .... [The] term ‘frivolous,’ when applied to a complaint,

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embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.”). “A

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case is malicious if it was filed with the intention or desire to harm another.” Andrews, 398 F.3d

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at 1121 (quotation and citation omitted).

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II.

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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 he makes 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)). Therefore, Plaintiff may be barred from proceeding IFP in this action if he

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has on three prior occasions had civil actions or appeals dismissed as frivolous, malicious or

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for failing to state a claim. See 28 U.S.C. § 1915(g).

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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). Here, the Court takes judicial notice

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that Plaintiff has had at least 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. They are:
1)

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Thornton v. Neotti, et al., Civil Case No. 10cv1677 LAB (BGS) (S.D. Cal.

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January 3, 2011 Order dismissing Second Amended Complaint for failure to state

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a claim upon which relief may be granted) (strike one);
2)

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Thornton v. Schwarzenegger, et al., Civil Case No. 10cv1583 RBB (S.D. Cal.

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June 1, 2011 Order Granting Defendants’ Motion to Dismiss for failure to state

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a claim upon which relief may be granted) (strike two); and
3)

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Thornton v. Cate, et al., Civil Case No. 10cv1585 JLS (PCL) (S.D. Cal. June 28,

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2011 Order dismissing Second Amended Complaint for failure to state a claim

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upon which relief may be granted) (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.

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Conclusion and Order

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For the reasons set forth above, the Court hereby DENIES Plaintiff’s Motion to Proceed

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IFP [ECF No. 2] pursuant to 28 U.S.C. § 1915(g) and DISMISSES this action without

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prejudice for failure to pay the $350 civil filing fee required by 28 U.S.C. § 1914(a).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: July 25, 2011

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WILLIAM Q. HAYES
United States District Judge

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