Murillo v. McBride et al

Filing 64

ORDER granting Defendants' 50 Motion for Order to Revoke Plaintiff's In Forma Pauperis Status, Declaring Plaintiff a Three-Strike Litigant, and Dismissing the Complaint. Dfts' motion to revoke Pla's IFP status under the "T hree Strikes" provision of 28 USC 1915(g) is granted. Pla must pay the $350 filing fee in full within 30 days from the date this Order is filed. If Pla fails to pay the filing fee within 30 days, this action will be dismissed. Signed by Judge Cynthia Bashant on 6/23/2014. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JORGE ENRIQUE MURILLO, CDCR #T-16641, Civil No. Plaintiff, 13 ORDER GRANTING DEFENDANTS’ MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FULL CIVIL FILING FEE AND REVOKING ORDER GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(g) 14 vs. 15 16 17 18 D.K. McBRIDE; MS. RONQUILLO; N. CATALUNA; V. KEMP; BLUEFORD; C. SALANG; LT. D. ARGUILEZ; E. GARCIA; MS. CLARK; R. COBB, 19 11-cv-1560-BAS(KSC) [ECF No. 50] Defendants. 20 21 I. 22 PROCEDURAL HISTORY On July 11, 2011, while incarcerated at Corcoran State Prison located in Corcoran, 23 California, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 24 regarding conditions of his confinement when he was incarcerated at the Richard J. Donovan 25 Correctional Facility in 2010. (See Compl., ECF No. 1, at 1.) In addition, Plaintiff filed two 26 Motions to Proceed In Forma Pauperis (“IFP”). (ECF Nos. 2, 6.) 27 On October 28, 2011, the Court granted Plaintiff’s Motion to Proceed IFP and directed 28 service of the Plaintiff’s Complaint on the named Defendants. (ECF No. 9.) Defendants have 1 11cv1560 BAS (KSC) 1 now filed a “Motion for Order Revoking Plaintiff’s In Forma Pauperis Status, Declaring 2 Plaintiff a Three-Strikes Litigant, and Dismissing the Complaint.” (ECF No. 50.) Plaintiff has 3 filed an Opposition to which Defendants have filed a Reply. (ECF Nos. 55, 58.) 4 II. DEFENDANTS’ MOTION 5 In this Motion, Defendants seek revocation of Plaintiff’s IFP status, as well as dismissal 6 of this action for failing to pay the initial civil filing fee. (See Defs.’ Memo of Ps & As [ECF 7 No. 50-1] at 5.) Defendants also request judicial notice of previous civil filings by Plaintiff. 8 (See Defs. Req. for Judicial Notice [ECF No. 50-3] at 1.) A court “‘may take notice of 9 proceedings in other courts, both within and without the federal judicial system, if those 10 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 11 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). In 12 this case, the Court finds it is appropriate to take judicial notice of the documents attached to 13 Defendants’ Notice. 14 Defendants argue that Plaintiff is not entitled to IFP status in this matter based on his See 28 U.S.C. § 1915(g). 15 previous litigation history. In addition, Defendants argue that 16 Plaintiff’s “complaint did not allege that he was under imminent danger of serious physical 17 injury” at the time he filed this action. (Defs.’ Memo of Ps & As at 5; citing Andrews v. 18 Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (hereafter “Cervantes”) (noting § 1915(g)’s 19 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced 20 ‘imminent danger of serious physical injury’ at the time of filing.”)). 21 A. 22 Section 1915 of Title 28 of the United States Code allows certain litigants to pursue civil 23 litigation IFP, that is, without the full prepayment of fees or costs. 28 U.S.C. § 1915(a)(2). 24 However, the Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the 25 privilege to proceed IFP: 26 27 28 Standard . . . 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. 2 11cv1560 BAS (KSC) 1 2 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.” 3 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”). “Pursuant to 4 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews v. 5 Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the PLRA, 6 “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP 7 status under the three strikes rule[.]”). 8 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 9 128 F.3d 1310, 1312 (9th Cir. 1997). The objective of the PLRA is to further “the 10 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 11 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 12 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles 13 such dismissal as a denial of the prisoner’s application to file the action without prepayment of 14 the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has 15 accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action 16 in federal court unless he can show he is facing “imminent danger of serious physical injury.” 17 See 28 U.S.C. § 1915(g). 18 B. Application of 28 U.S.C. § 1915(g) 19 Defendants set forth two district court cases and one appellate matter, filed by Plaintiff, 20 which they argue constitute “strikes” under 28 U.S.C. § 1915(g).1 These matters are as follows: 1. 21 Murillo v. Le Beau, C.D. Cal. Civil Case No. 2:05-cv-07280R-RNB (Order 22 Adopting Findings, Conclusions and Recommendations of United States 23 Magistrate Judge dismissing Complaint for failing to state a claim dated 24 Nov. 7, 2005); 25 26 27 28 1 Defendants also submit a case filed by Plaintiff in 2012 which was dismissed for failing to state a claim. However, Defendants “acknowledge the [dismissal] does not apply for the basis of the determination of this matter.” (Defs. Memo of Ps & As at 4, fn.1.) This matter clearly does not apply to the motion before this Court and was not considered by the Court. 3 11cv1560 BAS (KSC) 1 2. Dismissing Complaint for failing to state a claim dated Jan. 11, 2006); and 2 3 Murillo v. Inserra, AZ Civil Case No. 2:05-cv-01713-EHC-VAM (Order 3. Murillo v. Inserra, 9th Cir. Court of Appeal Doc. No. 06-15256 (Order 4 dismissing appeal for failing to prosecute following failure to pay filing fee 5 after denial of Motion to Proceed In Forma Pauperis dated July 13, 2006). 6 The first two actions are clearly “strikes” within the meaning of 1915(g) as both of these 7 actions were dismissed for failing to state a claim. The third proposed “strike” set forth by 8 Defendants is an appeal brought by Plaintiff of the case that forms the basis of his second 9 “strike.” Section 1915(g) defines a “strike” as an “action or appeal in a court of the United 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 11 upon which relief may be granted.” 28 U.S.C. § 1915(g). Defendants argue that this appeal was 12 frivolous because the Ninth Circuit denied Plaintiff the right to proceed IFP on appeal by finding 13 that the appeal was not taken in good faith. (See Defs. Memo of Ps & As at 4.) Plaintiff argues 14 that this appeal cannot constitute a “strike” because the appeal was dismissed for failing to 15 prosecute. (See Pl.’s Opp’n at 5.) 16 The Court has reviewed the docket in this appeal. On March 10, 2006, the district court 17 in the underlying matter determined that the appeal was not filed in good faith pursuant to 28 18 U.S.C. § 1915(a)(3). (See Murillo v. Inserra, 9th Cir. Court of Appeal Doc. No. 06-15256 , ECF 19 No. 8.) “The good faith requirement is satisfied if the petitioner seeks review of any issue that 20 is not frivolous.” Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. 21 United States, 369 U.S. 438, 445 (1962)). The appellate court has the authority to find that the 22 district court erred in finding that an appeal was not taken in good faith. See O’Neal, 531 F.3d 23 at 1150. In the matter before this Court, a review of the appellate docket shows that the Ninth 24 Circuit agreed that Plaintiff’s appeal was not taken in good faith and therefore, Plaintiff’s appeal 25 was frivolous. 26 informed him that he must pay the filing fee or the matter would be dismissed for failing to 27 prosecute. (See Murillo v. Inserra, 9th Cir. Court of Appeal Doc. No. 06-15256 , ECF No. 18.) The Ninth Circuit denied Plaintiff’s motion to proceed IFP on appeal and 28 4 11cv1560 BAS (KSC) 1 Plaintiff failed to pay the filing fee within the time prescribed and the case was dismissed for 2 failing to prosecute. (Id., ECF No. 18.) 3 The Ninth Circuit has held that “strikes” pursuant to § 1915(g) are “prior cases or 4 appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that 5 [they were] frivolous, malicious, or fail[] to state a claim.” Lira v. Herrera, 427 F.3d 1164, 1170 6 n. 7 (9th Cir. 2005) (emphasis added). Here, Plaintiff’s appeal was dismissed because the Ninth 7 Circuit denied his IFP on the grounds that his appeal was frivolous. See Knapp v. Hogan, 738 8 F.3d 1106, 1110 (9th Cir. 2013) (When an appeals court relies on a district court’s finding that 9 an appeal is “not taken in good faith,” the “lack of ‘good faith’ in this context has been held to 10 be equivalent to a finding of frivolity.”) (citation omitted.) Accordingly, this Court finds that 11 this matter constitutes Plaintiff’s third “strike.” 12 B. Imminent danger of serious physical injury 13 There is an exception to the three strikes bar of § 1915(g) if there is a “plausible 14 allegation” to suggest Plaintiff “faced ‘imminent danger of serious physical injury’ at the time 15 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). However, at the time 16 Plaintiff filed this Complaint regarding incidents at RJD, he was housed in a different prison. 17 Moreover, there are no claims in Plaintiff’s Complaint that he faced “imminent danger of 18 serious physical injury” while housed at Corcoran relating to the claims in this action. 19 Accordingly, because Plaintiff has, while incarcerated, accumulated three “strikes” 20 pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced imminent 21 danger of serious physical injury at the time he filed his Complaint, he is not entitled to the 22 privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d 23 at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the 24 courts; it only precludes prisoners with a history of abusing the legal system from continuing to 25 abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 26 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 27 /// 28 /// 5 11cv1560 BAS (KSC) 1 III. CONCLUSION AND ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1) 4 5 Defendants’ Motion to Revoke Plaintiff’s IFP status under the “Three Strikes” provision of 28 U.S.C. § 1915(g) is GRANTED. 2) Plaintiff must pay $350 filing fee in full within thirty (30) days from the date this 6 Order is Filed. If Plaintiff fails to pay the filing fee within thirty (30) days, this action will be 7 dismissed. 8 IT IS SO ORDERED. 9 DATED: June 23, 2014 10 Hon. Cynthia Bashant United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 11cv1560 BAS (KSC)

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