Carrea v. San Diego County et al

Filing 5

ORDER: (1) Denying 3 Plaintiff's Motion for Leave to Proceed In Forma Pauperis as Barred by 28 USC 1915(g); (2) Denying as Moot 2 Plaintiff's Motion for Extension of Time; and (3) DISMISSING Civil Action For Failing to Pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court certifies that an IFP appeal from this Order would be frivolous and 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 Gonzalo P. Curiel on 5/9/2014. (All non-registered users served via U.S. Mail Service)(srm)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER CARREA, Jr.
CDCR #P-77287,

Civil No.

Plaintiff,

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vs.

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(2) DENYING PLAINTIFF’S
MOTION FOR EXTENSION
OF TIME AS MOOT
(ECF Doc. No. 2)

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SAN DIEGO COUNTY, et al.

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ORDER:
(1) DENYING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS AS
BARRED BY 28 U.S.C. § 1915(g)
(ECF Doc. No. 3)

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AND
Defendants.

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(2) DISMISSING CIVIL ACTION
FOR FAILURE TO PAY FILING
FEES REQUIRED BY
28 U.S.C. § 1914(a)

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Christopher Carrea, Jr. (“Plaintiff”), who is currently incarcerated at California

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Rehabilitation Center (“CRC”) in Norco, California, and proceeding pro se, has filed a

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civil rights complaint pursuant to 42 U.S.C. § 1983.

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Plaintiff seeks damages and injunctive relief against various San Diego County

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officials, including the County’s Chief Administrative Officer, Public Defender, Sheriff,
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and the Office of Assigned Counsel, as well as several individual public defenders and

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sheriff’s deputies, for failing to provide him with adequate legal support or law library

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materials and interfering with his mail while he was detained at the San Diego County

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Jail and proceeding in propria persona during state court criminal proceedings. See

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Compl. at 3-4, 9, 11, 13-17. Plaintiff seeks general and punitive damages as well as

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injunctive relief. Id. at 21.

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

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he filed a Motion for Extension of Time in which to submit a Motion to Proceed In

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Forma Pauperis (“IFP”) (ECF Doc. No. 2). Plaintiff has since filed his Motion to

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Proceed IFP however, together with the trust account statements required by 28 U.S.C.

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§ 1915(a)(2) (ECF Doc. No. 3).

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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

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pursue civil litigation IFP, that is, without the full prepayment of fees or costs. See 28

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U.S.C. § 1915(a)(2). However, the Prison Litigation Reform Act (“PLRA”) amended

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section 1915 to preclude the privilege to proceed IFP:

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. . . 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.

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

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

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“Andrews”). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed

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IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

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suits may entirely be barred from IFP status under the three strikes rule[.]”). The

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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the

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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by

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section 1915(g) from pursuing any other IFP action in federal court unless he can show

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he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g);

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Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which

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

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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

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has ascertained that there is no “plausible allegation” to suggest Plaintiff “faced

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‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d

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at 1055 (quoting 28 U.S.C. § 1915(g)). As noted above, Plaintiff alleges Defendants

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failed to provide him with sufficient “ancillary” legal support services while he was in

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County custody and representing himself in San Diego Superior Court criminal

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proceedings. See Compl. at 3-4, 9, 11, 13-17. Nothing in Plaintiff’s Complaint suggests

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he faced any “‘ongoing danger” of serious physical injury sufficient to “meet the

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imminence prong of the three-strikes exception” at the time he filed his Complaint.

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Cervantes, 493 F.3d at 1057. Therefore, Plaintiff may be barred from proceeding IFP

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in this action if he has on three prior occasions had civil actions or appeals dismissed as

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frivolous, malicious or 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

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the federal judicial system, if those proceedings have a direct relation to matters at

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issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v.

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Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel.

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Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Thus, this Court takes judicial notice of its own docket, as well as the courts’

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dockets in the Central and Eastern Districts of California, and finds that Plaintiff

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Christopher Carrea, Jr., CDCR #P-77287, has had at least six prior prisoner civil actions

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

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upon which relief may be granted. See 28 U.S.C. § 1915(g).

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They are:

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1)

Carrea v. Los Angeles County, et al., Civil Case No. 2:00-cv-09542-CAS-

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MLG (C.D. Cal. West. Div. Feb. 11, 2002) (Report and Recommendation [“R&R”] to

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Dismiss Amended Complaint for failing to state a claim upon which relief may be

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granted) (ECF Doc. No. 38); (March 28, 2002 Order Adopting R&R) (ECF Doc. No.

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39); and (Dec. 30, 2002 Certified Copy of Appellate Court Order dismissing 9th Cir.

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Court of Appeal No. 02-56051 & Mandate) (ECF Doc. Nos. 45, 46) (strike one);

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2)

Carrea v. University of San Diego, et al., Civil Case No. 3:03-cv-01151-

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BTM-BEN (S.D. Cal. Aug. 19, 2003) (Order denying motion to proceed IFP and

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dismissing complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A) (ECF

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Doc. No. 3) (strike two);

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3)

Carrea v. University of California, et al., Civil Case No. 2:03-cv-04317-

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UA-MAN (C.D. Cal. West. Div. Sept. 3, 2003) (Order denying application to proceed

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IFP and dismissing action “as legally and/or factually frivolous”) (ECF Doc. No. 6)

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(strike three);

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4)

Carrea v. State of California, et al., Civil Case No. 3:03-cv-01956-K-POR

(S.D. Cal. April 30, 2004) (Order dismissing case for failing to pay filing fees or move

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to proceed IFP and for failure to state a claim pursuant to 28 U.S.C. § 1915A (ECF Doc.

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No. 2) (strike four);
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Carrea v. San Diego County, et al., Civil Case No. 3:09-cv-00371-W-BLM

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(S.D. Cal. March 2, 2009) (Order dismissing civil action as frivolous pursuant to 28

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U.S.C. § 1915A(b)(1) and denying motion to proceed IFP as moot) (ECF Doc. No. 8);

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(Sept. 9, 2009 Order and Mandate of USCA dismissing 9th Cir. Appeal No. 09-55491)

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(ECF Doc. No. 19) (strike five); and
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Carrea v. State of California, et al., Civil Case No. 1:10-cv-01004-OWW-

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GSA (E.D. Cal. Nov. 10, 2010) (Order dismissing complaint pursuant to 28 U.S.C.

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§ 1915(e)(2) (ECF Doc. No. 6); (Dec. 15, 2010 Findings and Recommendations

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[“F&R”] Regarding Plaintiff’s Failure to Follow a Court Order requiring amendment)

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(ECF Doc. No. 7); (Jan. 26, 2011 Order Adopting F&Rs and Judgment) (ECF Doc. Nos.

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8, 9) (strike six).1

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Accordingly, because Plaintiff has, while incarcerated, accumulated twice the

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

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allegation” that he faced imminent danger of serious physical injury at the time he filed

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his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See

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Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C.

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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

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prisoners with a history of abusing the legal system from continuing to abuse it while

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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

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The Court notes Plaintiff’s IFP status was also revoked pursuant to 28 U.S.C. § 1915(g)
in Carrea v. Barnhart, et al., S.D. Cal. Civil Case No. 3:07-cv-00440-DMS-CAB (May 12, 2008
28 Order sua sponte revoking Order granting Plaintiff leave to proceed IFP pursuant to 28 U.S.C.
§ 1915(g)) (ECF Doc. No. 45).
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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 Doc. No. 3) as barred by

28 U.S.C. § 1915(g), and his Motion for Extension of Time (ECF Doc. No. 2) as moot;
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DISMISSES this action without prejudice based on Plaintiff’s inability to

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proceed IFP and his failure to prepay the $400 civil filing and administrative fee required

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by 28 U.S.C. § 1914(a), and

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

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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,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

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appeal would 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: May 9, 2014

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HON. GONZALO P. CURIEL
United States District Judge

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