Deere v. Estock

Filing 7

ORDER: (1) Denying Motions to Proceed in Forma Pauperis as Barred by 28U.S.C. § 1915(g); and (2) Dismissing Case for Failure to Pay filing Fee. Signed by Judge Janis L. Sammartino on 9/20/2013.(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ARTHUR RAY DEERE, SR., CDCR #F-94040, Case No. Plaintiff, 13 vs. 14 15 DR. E. ESTOCK, 16 Defendant. 17 13cv1344 JLS (NLS) ORDER: (1) DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g); AND (2) DISMISSING CASE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) (ECF Docs. No. 3, 6) 18 19 Plaintiff Arthur R. Deere, Sr. (“Plaintiff”), a state prisoner currently incarcerated at the 20 California Institute for Men, and proceeding pro se, has filed a civil rights action. Plaintiff did 21 not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he filed his complaint; 22 instead, he has since submitted two Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 23 28 U.S.C. § 1915(a). (ECF Nos. 3, 6.) 24 LEGAL STANDARD 25 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. Sheriff’s 26 Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face an additional 27 hurdle.” Id. 28 installments, as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation Reform Act In addition to requiring prisoners to “pay the full amount of a filing fee” in 1 13cv1344 JLS (NLS) 1 (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP if [a] 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 3 4 5 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.” 6 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) [hereinafter Andrews]. 7 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; 8 see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) [hereinafter Cervantes] 9 (holding that, under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 10 entirely be barred from IFP status under the three strikes rule”). The objective of the PLRA is 11 to further “the congressional goal of reducing frivolous prisoner litigation in federal court.” 12 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior 13 dismissed claims applies to claims dismissed both before and after the statute’s effective date.” 14 Id. at 1311. 15 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 16 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 17 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles 18 such dismissal as a denial of the prisoner’s application to file the action without prepayment of 19 the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has 20 accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP 21 action in federal court unless he can show he is facing “imminent danger of serious physical 22 injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception 23 for IFP complaints that “make[] a plausible allegation that the prisoner faced ‘imminent danger 24 of serious physical injury’ at the time of filing”). 25 ANALYSIS 26 A court “‘may take notice of proceedings in other courts, both within and without the 27 federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. 28 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 2 13cv1344 JLS (NLS) 1 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens 2 Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). This Court takes judicial notice that 3 Plaintiff has had three prior prisoner civil actions dismissed on the grounds that they were 4 frivolous, malicious, or failed to state a claim upon which relief may be granted: 5 1) Deere v. Cuomo, Civil Case No. 11-0542 JAH (WMc) (S.D. Cal. Aug. 23, 2012) 6 (Order dismissing Third Amended Complaint for faiure to state a claim pursuant 7 to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)); 8 2) (Order dismissing Second Amended Complaint for failure to state a claim 9 pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)); and 10 11 Deere v. Brown, Civil Case No. 11-1579 WQH (JMA) (S.D. Cal. Oct. 3, 2012) 3) Deere v. Altamirano, Civil Case No. 12-412-UA (CW) (C.D. Cal. April 4, 2012) 12 (Order denying Motion to Proceed IFP and dismissing case as frivolous, malicious 13 or failing to state a claim upon which relief may be granted). 14 These prior civil actions are each “strikes” as defined by § 1915(g). Thus, Plaintiff has, 15 while incarcerated, accumulated three “strikes.” Moreover, after carefully reviewing Plaintiff’s 16 pleading, the Court finds that it contains no “plausible allegation” to suggest Plaintiff “faced 17 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 18 (quoting 28 U.S.C. § 1915(g)). 19 Accordingly, the Court finds that Plaintiff is not entitled to the privilege of proceeding 20 IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 21 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 22 prisoners with a history of abusing the legal system from continuing to abuse it while enjoying 23 IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 24 permission to proceed IFP is itself a matter of privilege and not right.”). CONCLUSION AND ORDER 25 26 For the reasons set forth above, the Court hereby: 27 (1) 28 U.S.C. § 1915(g); DENIES Plaintiff’s Motions to Proceed IFP (ECF Nos. 3, 6) as barred by 28 3 13cv1344 JLS (NLS) 1 2 3 (2) DISMISSES this action sua sponte without prejudice for failure to prepay the $350 filing fee pursuant to 28 U.S.C. § 1914(a); and (3) CERTIFIES that an IFP appeal from this Order would also be frivolous and, 4 therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United 5 States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent 6 appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). 7 The Clerk shall close the file. 8 IT IS SO ORDERED. 9 10 11 12 DATED: September 20, 2013 Honorable Janis L. Sammartino United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 13cv1344 JLS (NLS)

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