Wilson v. Paramo et al

Filing 8

ORDER denying 5 Motion for Leave to Proceed in Forma Pauperis, Motion is Denied pursuant to 28 USC 1915(g), and Dismissing Case for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court further 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 is instructed to close the file. Signed by Judge Larry Alan Burns on 9/27/11. (All non-registered users served via U.S. Mail Service)(kaj)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID WAYNE WILSON,
CDCR #K-66474,

Civil No.
Plaintiff,

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vs.
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ORDER:
(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)

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[ECF No. 5]
D. PARAMO, Acting Warden; T. KABBANMILLER, Chief Deputy Warden; ALAN
HERNANDEZ, Assoc. Warden;
G. SAVALA, Captain; E. GARCIA, Captain;
V. SOSA, Correctional Counselor;
A. ALLAMBY, Lieutenant; SUZAN L.
HUBBARD, Director of Adult Institutions;
GEORGE A. NEOTTI, X-Warden; SARA
MOLONE, Ombudsman of Dept. of
Corrections; D. FOSTON, Chief Inmate
Appeals; A. CHRISTIAN, Sergeant,

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

Defendants.

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Plaintiff, a state prisoner currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C.

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§ 1983. Plaintiff seeks to sue a host of RJD and California Department of Corrections and

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Rehabilitation officials on grounds that they retaliated against him and denied his rights to equal

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protection, due process and to be free from cruel and unusual punishments in October 2010 and

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July 2011 by inadequately responding to his complaints demanding the “recall” of RJD’s Men’s

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Advisory Council (“MAC”), placing him in the Administrative Segregation Unit (“ASU”), and

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conspiring to deny him witnesses, vitamins, protein supplements, eye drops, socks, underwear,

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writing paper and recreational reading material. See Compl. at 5-7.

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

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No. 5].

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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).

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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 action

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in federal court unless he can show he is facing “imminent danger of serious physical injury.”

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

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of

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

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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 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)). As noted above, Plaintiff’s pleading contains a litany of grievances and

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comprises voluminous exhibits all cataloguing his attempts in 2010 to unseat fellow inmates

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assigned to RJD’s MAC based on allegations of racial discrimination. (Compl. at 5.) Plaintiff

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contends that in reprisal for these grievances and other litigation activity, he was placed in ASU

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in July 2011, denied access to confidential witnesses during a disciplinary hearing and subject

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to various other restrictions on his access to medical “appliances” and the prison law library.

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(Id. at 6-7.)

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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 David Wayne Wilson, aka David W. Wilson, CDCR #K-66474, has had at

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least eight prior prisoner civil actions dismissed on the grounds that they were frivolous,

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

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They are:

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1)

Wilson v. Yarbrough, Civil Case No. 2:02-cv-08293-UA-RNB (C.D. Cal., West.

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Div.- Los Angeles Feb. 26, 2003 Order denying leave to proceed IFP and dismissing action as

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“legally and/or factually frivolous” [ECF No. 4]) (strike one);

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2)

Wilson v. Schwartz, et al., Civil Case No. 2:05-cv-01649-GEB-CMK (E.D. Cal.

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Sept. 26, 2006 Findings & Recommendations (“F&Rs”) re Dismissal for failing to state a claim

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[ECF No. 24]); (E.D. Cal. October 31, 1006 Order Adopting F&Rs and Dismissing Action

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[ECF No. 26]) (strike two);

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3)

Wilson v. Veal, et al., Civil Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal. May

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8, 2007 F&Rs re Dismissal as frivolous and for failure to state a claim [ECF No. 9]); (E.D. Cal.

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June 4, 2007 Order Adopting F&Rs and Dismissing Action [ECF No. 11]) (strike three);

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4)

Wilson v. Dovey, et al., Civil Case No. 2:06-cv-01032-FCD-EFB (E.D. Cal. Dec.

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20, 2006 F&Rs re dismissal of action for failing to state a claim [ECF No. 11]); (E.D. Cal.

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March 8, 2007 Order adopting F&Rs and dismissing action for failure to state a claim [ECF No.

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13]) (strike four);

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5)

Wilson v. Zafra, et al., Civil Case No. 2:06-cv-01577-FCD-KJM (E.D. Cal. Sept.

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19, 2008 Order and F&Rs that Defendants’ Motion to Dismiss be granted for failing to state a

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claim [ECF No. 42]); (E.D. Cal. Oct. 31, 2008 Order Adopting F&Rs and Dismissing action

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for failing to state a claim [ECF No. 44]) (strike five);

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6)

Wilson v. Dovey, et al., Civil Case No. 2:06-cv-02553-JKS-EFB (E.D. Cal. Aug.

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31, 2007 F&Rs re dismissal of action for failure to state a claim per 28 U.S.C. § 1915A [ECF

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No. 13]; (E.D. Cal. March 11, 2008 Order adopting F&Rs and dismissing action with prejudice

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for failure to state a claim [ECF No. 18]) (strike six);

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7)

Wilson v. Director of Adult Institutions, et al., Civil Case No. 2:08-cv-02904-

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WBS-GGH (E.D. Cal. March 25, 2009 Order and F&Rs re dismissal of action as “wholly

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frivolous [ECF No. 13]); (E.D. Cal. April 24, 2009 Order adopting F&Rs, dismissing action and

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closing case) [ECF No. 19]) (strike seven); and

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Wilson v. Fitter, et al., Civil Case No. 2:09-cv-01162-DDP-RNB (C.D. Cal.,

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West. Div.- Los Angeles Nov. 5, 2009 Report & Recommendation (“R&R”) to Grant

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Defendants’ Motion to Dismiss Third Amended Complaint for failure to state a claim pursuant

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to F ED.R.C IV.P. 12(b)(6) [ECF No. 31]); (C.D. Cal. Sept. 30, 2010 Order Adopting R&R and

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Granting Motion to Dismiss action with prejudice [ECF No. 34]) (strike eight).

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Accordingly, because Plaintiff has, while incarcerated, accumulated far more than the

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three “strikes” permitted pursuant to § 1915(g), and he fails to make a “plausible allegation”

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that he faced imminent danger of serious physical injury at the time he filed his Complaint, he

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is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at

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1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all

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

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legal system from continuing to abuse it while enjoying IFP status”); see also Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a

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matter of privilege and not right.”).1

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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:

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1)

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DENIES Plaintiff’s Motion to Proceed IFP [ECF No. 5] pursuant to 28 U.S.C.

§ 1915(g);

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2)

DISMISSES this action without prejudice for failure to pay the $350 civil filing

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fee required by 28 U.S.C. § 1914(a), and

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The Central District of California has also precluded Plaintiff from proceeding IFP pursuant
to 28 U.S.C. § 1915(g) absent allegations of “imminent danger of serious physical injury.” See Wilson
v. Haws, Civil Case No. 2:07-cv-08019-UA-RNB (C.D. Cal., West. Div., Los Angeles Dec. 19, 2007
Order to Show Cause why request to proceed IFP should not be denied pursuant to 28 U.S.C. § 1915(g)
[ECF No. 2]; (C.D. Cal. Feb. 12, 2008 Order Denying Plaintiff’s Request to Proceed IFP pursuant to 28
U.S.C. § 1915(g) [ECF No. 4]).
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3)

FURTHER CERTIFIES that an IFP appeal from this Order would be frivolous

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and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550

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(9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would

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not be frivolous).

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The Clerk is instructed to close the file.

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IT IS SO ORDERED.

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DATED: September 27, 2011

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H ONORABLE L ARRY A LAN B URNS
United States District Judge

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