Jordan v. Borris et al

Filing 10

ORDER: Denying Plaintiff's 2 Motion to Proceed in forma pauperis as barred by 28 U.S.C. § 1915(g); and (2) Dismissing Civil Action for Failure to Pay Filing Fees Required by 28 U.S.C. § 1914(a). Signed by Judge Barry Ted Moskowitz on 10/14/2014. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROGER JORDAN, Jr.,
aka IMHOTEP JORDAN, Jr.,
CDCR #C-71742,

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Civil No.
Plaintiff,

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vs.
THOMAS J. BORRIS, Superior Court
Judge, et al.,

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Defendants.

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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. 2)

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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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John Roger Jordan, Jr. (“Plaintiff”), proceeding pro se and describing himself as

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a “natural free born living breathing flesh and blood sovereign sentient being,” is

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currently incarcerated at California State Prison in Lancaster, California, and has filed

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a civil action entitled “Presentment Instrument under Necessity of 42 U.S.C. § 1983”

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(“Compl.”) (Doc. No. 1).

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While his pleading is difficult to decipher, Plaintiff appears to seek a “default

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judgment” against two Orange County California Superior Court Judges based on claims
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that they have “refused to honor” their “constitutional oath of office contract[s]” by

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committing “illegal” acts and omissions, and specifically “refusing to answer” a

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“commercial presentment instrument” which has “further[ed] [Plaintiff’s] false

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imprisonment,” resulted in his “involuntary servitude, peonage and slavery,” and caused

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him “unnecessary serious emotional, psychological, and spiritual injury.” See Compl.

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at 3-4, 7, 9-12.

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

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 2).

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I.

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:
. . . 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

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

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

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

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

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

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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.

APPLICATION OF 28 U.S.C. § 1915(g)

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As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint to the

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best of its ability and has ascertained 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 appears to bring this

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suit in order to challenge decisions taken by two Superior Court Judges related to a “false

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arrest” and “fraudulent” conviction. See Compl. at 7. Nothing in his Complaint suggests

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that 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 of filing. Cervantes, 493

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F.3d at 1057. Therefore, Plaintiff may be barred from proceeding IFP in this action if

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

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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 other civil proceedings in its own docket, and

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finds that Plaintiff, John Roger Jordan, Jr., aka Imhotep Jordan, Jr., and identified as
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CDCR Inmate #C-71742, has, on far more than 3 prior occasions in 2012 alone, and

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before he sought leave to proceed IFP in this case,1 had civil actions filed while he was

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

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a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
They are:

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1)

Jordan v. Madden, S. D. Cal. Civil Case No. 3:12-cv-00098-DMS-POR (March

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6, 2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike one);

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2)

Jordan v. Builteman, S.D. Cal. Civil Case No. 3:12-cv-00099-BEN-NLS (March

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8, 2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike two);

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3)

Jordan v. Coronado, S.D. Cal. Civil Case No. 3:12-cv-00100-WQH-RBB (March

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9, 2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike three);

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4)

Jordan v. Carpio, S.D. Cal. Civil Case No. 3:12-cv-00101-IEG-JMA (March 19,

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2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike four);

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5)

Jordan v. Powell, S.D. Cal. Civil Case No. 3:12-cv-00102-DMS-BLM (March 6,
2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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All of these cases have ripened into “strikes” under § 1915(g) because in each
case, Plaintiff “did not appeal [the dismissal],” and “his time to file a direct appeal
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658 F.3d 1090, 1100 & n.6 (9th Cir. 2011) (holding that “a district court’s dismissal of
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waived his opportunity to appeal.”).
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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike five);

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6)

Jordan v. Price, S.D. Cal. Civil Case No. 3:12-cv-00103-WQH-JMA (March 9,

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2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous and malicious pursuant to 28 U.S.C.

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§ 1915A(b)(1)) (ECF Doc. No. 2) (strike six);

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Jordan v. Huff, S.D. Cal. Civil Case No. 3:12-cv-00262-AJB-WMC (February 6,

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2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A) (ECF Doc.
No. 2) (strike seven);

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Jordan v. Houston, S.D. Cal. Civil Case No. 3:12-cv-00263-JLS-WMC (February

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17, 2012) (Order dismissing civil action for failing to pay filing fees, for failing

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to move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A) (ECF

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Doc. No. 4) (strike eight);

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9)

Jordan v. Anello, S.D. Cal. Civil Case No. 3:12-cv-00264-AJB-MDD (February

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6, 2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A) (ECF Doc.

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No. 2) (strike nine);

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10)

Jordan v. Lewis, S.D. Cal. Civil Case No. 3:12-cv-00265-AJB-BLM (February 6,

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2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A) (ECF Doc.

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No. 2) (strike ten);

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Jordan v. Sabraw, S.D. Cal. Civil Case No. 3:12-cv-01212-AJB-WVG (May 21,

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2012) (Order dismissing civil action for failing to pay filing fees, for failing to

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move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A) (ECF Doc.

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No. 2) (strike eleven); and

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Jordan v. District Court Judge, S.D. Cal. Civil Case No. 3:12-cv-02042-AJB-PCL
(Aug. 22, 2012) (Order dismissing civil action for failing to pay filing fees, for
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failing to move to proceed IFP and as frivolous pursuant to 28 U.S.C. § 1915A)

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(ECF Doc. No. 2) (strike twelve).2

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

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

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he faced imminent danger of serious physical injury at the time he filed this action, he

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

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1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (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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III.

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. 2) as barred by

28 U.S.C. § 1915(g);

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These twelve cases comprise only Plaintiff’s latest “strikes” under 28 U.S.C.
§ 1915(g). Indeed, in 2011, Plaintiff also had an additional 19 prisoner civil actions, all
seeking to sue clerk’s office employees and practically every judge on this Court,
dismissed as frivolous and/or malicious. See, e.g., Jordan v. Lloyd, S.D. Cal. Civil Case
No. 3:11-cv-01724-JLS-BLM; Jordan v. Moskowitz, S.D. Cal. Civil Case No. 3:11-cv01725-JLS-WMC; Jordan v. Sabraw, S.D. Cal. Civil Case No. 3:11-cv-01726-JAHJMA; Jordan v. Gonzalez, S.D. Cal. Civil Case No. 3:11-cv-01727-JLS-CAB; Jordan
v. Battaglia, S.D. Cal. Civil Case No. 3:11-cv-01728-LAB-BLM; Jordan v. Benitez, S.D.
Cal. Civil Case No. 3:11-cv-01729-MMA-POR; Jordan v. Anello, S.D. Cal. Civil Case
No. 3:11-cv-01730-DMS-POR; Jordan v. Moskowitz, S.D. Cal. Civil Case No. 3:11-cv02029-H-POR; Jordan v. Benitez, S.D. Cal. Civil Case No. 3:11-cv-02030-BTM-PCL;
Jordan v. Lloyd, S.D. Cal. Civil Case No. 3:11-cv-02031-MMA-POR; Jordan v.
Battaglia, S.D. Cal. Civil Case No. 3:11-cv-02032-MMA-WVG; Jordan v. Gonzalez,
S.D. Cal. Civil Case No. 3:11-cv-02036-JLS-CAB; Jordan v. Sabraw, S.D. Cal. Civil
Case No. 3:11-cv-02037-BTM-WMC; Jordan v. Anello, S.D. Cal. Civil Case No. 3:11cv-02038-WQH-MDD; Jordan v. Lewis, S.D. Cal. Civil Case No. 3:11-cv-02403-BENNLS; Jordan v. Sammartino, S.D. Cal. Civil Case No. 3:11-cv-02404-BEN-WVG;
Jordan v. Huff, S.D. Cal. Civil Case No. 3:11-cv-02405-BEN-WVG; Jordan v. Anello,
S.D. Cal. Civil Case No. 3:11-cv-02435-JAH-MDD; and Jordan v. Houston, S.D. Cal.
Civil Case No. 3:11-cv-02518-MMA-JMA.
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2)

DISMISSES this civil action without prejudice based on Plaintiff’s inability

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

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required by 28 U.S.C. § 1914(a); and

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3)

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 enter a judgment of dismissal and close the file.

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IT IS SO ORDERED.

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DATED: October 14, 2014
BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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