Rodriguez v. Dumanis et al

Filing 4

ORDER (1) Denying Motion To Proceed In Forma Pauperis As Barred By 28 U.S.C. Section 1915(g) (Re Dkt # 3 ) And (2) Dismissing Civil Action Without Prejudice For Failing To Pay Filing Fee: The Court certifies that an IFP appeal from this Order would be frivolous and therefore, not taken in good faith pursuant to 28 U.S.C. Section 1915(a)(3). The Clerk shall close the file. Signed by Judge William Q. Hayes on 2/11/2016. (All non-registered users served via U.S. Mail Service.) (mdc) (jao).

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

PEDRO RODRIGUEZ,
Booking #14745493,

ORDER:

Plaintiff,

13
14

Case No.: 3:16-cv-00009 WQH (MDD)

v.

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

15
16
17

BONNIE DUMANIS, et al.,
Defendants.

AND

18

(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)

19
20
21
22

Plaintiff, Pedro Rodriguez, currently detained at the San Diego Central Jail, has

23

filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF Doc. No.

24

1.) Plaintiff seeks both damages and injunctive relief against the San Diego County

25

District Attorney, two Assistant District Attorneys, and the City and County of San Diego

26

based on claims that he is being denied a fair trial in pending criminal proceedings in San

27

Diego Superior Court. See Compl. at 2-5, 14.

28

1
3:16-cv-00009 WQH (MDD)

1
2
3
4

Plaintiff has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a);
instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 3).
I.

Motion to Proceed IFP
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

5

Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). “Prisoners” like Plaintiff, however,

6

“face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

7

of a filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v.

8

Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

9

(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP

10

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.

11
12
13
14

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

15

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

16

“Andrews”).

17

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

18

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

19

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

20

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

21

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

22

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

23

“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

24

before and after the statute’s effective date.” Id. at 1311.

25

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

26

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

27

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

28

2
3:16-cv-00009 WQH (MDD)

1

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

2

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

3

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

4

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

5

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

6

493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a

7

plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’

8

at the time of filing.”).

9

II.

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

10
11

ascertained that it does not contain “plausible allegations” which suggest he “faced

12

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

13

1055 (quoting 28 U.S.C. § 1915(g)).
A court “‘may take notice of proceedings in other courts, both within and without

14
15

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

16

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

17

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

18

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

19

Thus, this Court takes judicial notice that Plaintiff, while incarcerated, has brought

20

at least three prior civil actions which have been dismissed on the grounds that they were

21

frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28

22

U.S.C. § 1915(g).

23

They are:

24

1)

Rodriguez v. Robinson, et al., Civil Case No. 3:14-02770-LAB-WVG (S.D.

25

Cal. Jan. 16, 2015) (Order Granting Motion to Proceed IFP and Dismissing

26

Complaint for failing to state a claim) (ECF Doc. No. 4) (strike one);

27
28

///
3
3:16-cv-00009 WQH (MDD)

1

2)

Rodriguez v. Mitchell, et al., Civil Case No. 3:14-cv-02708-GPC-WVG

2

(S.D. Cal. Feb. 18, 2015) (Order granting Motion to Proceed IFP and

3

Dismissing Complaint for failing to state a claim and seeking monetary

4

damages against immune defendants) (ECF Doc. No. 4.) (strike two); and

5

3)

Rodriguez v. Stall, et al., Civil Case No. 3:14-cv-02646-LAB-DHB (S.D.

6

Cal. Apr. 23, 2015) (Order Dismissing First Amended Complaint for failing

7

to state a claim) (ECF Doc. No. 11) (strike three).

8
9

Accordingly, because Plaintiff has, while incarcerated, accumulated at least the
three “strikes”1 permitted pursuant to § 1915(g), and he fails to make a “plausible

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

III.

Conclusion and Order

18

For the reasons set forth above, the Court hereby:

19

(1)

20

DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 3) as barred by

28 U.S.C. § 1915(g);

21

(2)

DISMISSES this civil action sua sponte without prejudice for failing to

22

prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); and

23

///

24

///

25
26
27
28

1

Plaintiff has, in fact, filed twelve separate civil rights actions in this Court alone since
November 2014.
4
3:16-cv-00009 WQH (MDD)

1

(3)

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

2

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

3

United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.

4

1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not

5
6

be frivolous).
The Clerk shall close the file.

7

IT IS SO ORDERED.

8

Dated: February 11, 2016

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5
3:16-cv-00009 WQH (MDD)