Ullrich v. Idaho State Supreme Court et al

Filing 5

ORDER denying 2 Motion for Leave to Proceed in forma pauperis. Motion is Denied pursuant to 28 USC 1915(g). The Court DENIES Petitioners motion to proceed IFP, (Doc. No. 2), as barred by 28 U.S.C. § 1915(g); (2) DISMISSES this action WITHOUT PREJUDICE for failure to pay the full statutory and administrative $400 civil filing fee as required by 28 U.S.C. § 1914(a); and (3) CERTIFIES that an IFP appeal from this order would be frivolous and therefore would not be in good faith p ursuant to 28 U.S.C. § 1915(a)(3). See Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). Failure to pay the filing fee by August 29, 2016, will result in this cases closure. Signed by Judge Anthony J. Battaglia on 8/1/2016. (All non-registered users served via U.S. Mail Service)(acc) (sjt).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

STEPHEN ULLRICH,

Case No.: 16-CV-1130-AJB-DHB
Petitioner,

12
13
14

ORDER

v.
IDAHO STATE SUPREME COURT;
CALIFORNIA STATE SUPREME
COURT; UNITED STATES DISTRICT
COURT BOISE, IDAHO; UNITED
STATES DISTRICT COURT SAN
DIEGO, CALIFORNIA; UNITED
STATE COURT OF APPEALS,

15
16
17
18
19

(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g),
(Doc. No. 2); AND
(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE AS
REQUIRED BY 28 U.S.C. § 1914(a)

Defendants.

20
21

Petitioner Stephen Ullrich (“Petitioner”), currently incarcerated at the Idaho State

22

Correctional Institution in Boise, Idaho, has filed an incomprehensible petition for writ of

23

mandamus requesting declaratory relief that “legal disabilities, [sic] frustrate, hinder, or

24

chill his access to administrative and judicial grievances,” as well as injunctive relief

25

granting him access to certain records. (Doc. No. 1 at 4.) He also seeks relief in the form

26

of proceeding against Defendants for their allegedly wrongful dismissals of the multiple

27

frivolous lawsuits he has filed. Petitioner has filed an application to proceed in forma

28

pauperis (“IFP”) in this case to exempt him from prepaying the filing fee. (Doc. No. 2.)
1
16-CV-1130-AJB-DHB

LEGAL STANDARD

1
2

“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty.

3

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

4

an additional hurdle.” Id. That is, prisoners are required to “pay the full amount of a filing

5

fee” in monthly installments or increments. 28 U.S.C. § 1915(b); Bruce v. Samuels, 136 S.

6

Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015). However,

7

the Prison Litigation Reform Act (“PLRA”) amended § 1915 to preclude the privilege of

8

proceeding IFP

9

11

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 may be granted[.]

12

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

13

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

10

14

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

15

were dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ed] to state a

16

claim[,]” id., “even if the district court styles such dismissal as a denial of the prisoner’s

17

application to file the action without prepayment of the full filing fee,” O’Neal v. Price,

18

531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated three strikes, §

19

1915(g) prohibits him or her from pursuing any other IFP action in federal court unless he

20

can show he is facing “imminent danger of serious physical injury” at the time the action

21

is instituted. 28 U.S.C. § 1915(g). The objective of the PLRA is to further “the

22

congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v.

23

Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

24

DISCUSSION

25

As an initial matter, the Court has carefully reviewed Petitioner’s complaint and has

26

determined that it does not contain any plausible allegations to suggest he “faced ‘imminent

27

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

28

1047, 1055 (9th Cir. 2007) [hereinafter Cervantes]. Instead, Petitioner appears to claim he
2
16-CV-1130-AJB-DHB

1

is being denied access to the courts based on the dismissal of his prior lawsuits.1

2

A court “‘may take notice of proceedings in other courts, both within and without

3

the federal judicial system, if those proceedings have a direct relation to matters at issue.’”

4

Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,

5

285 F.3d 801, 803 n.2 (9th Cir. 2002)). Accordingly, the Court judicially notices the fact

6

that Petitioner, Stephen Ullrich, identified as Idaho Department of Corrections Inmate

7

#56989, has had at least seven prior prisoner civil actions dismissed on the grounds that

8

they were frivolous, malicious, or failed to state a claim upon which relief may be granted:

9

1. Ullrich v. Idaho, Civil Case No. 1:05-cv-00340-LMB (D. Idaho Dec. 7, 2005)

10

(order dismissing complaint for failing to state a claim per 28 U.S.C. §

11

1915(e)(2)(B) [Doc. No. 7]) (strike one);

12

2. Ullrich v. Barnhart, Civil Case No. 1:06-cv-00080-EJL (D. Idaho May 1, 2006)

13

(initial review order denying IFP and dismissing complaint for failure to state a

14

claim per 28 U.S.C. § 1915(e)(2)(B) [Doc. No. 10]) (strike two);

15

3. Ullrich v. Canyon Cnty. Commr’s, Civil Case No. 1:06-cv-00095-EJL (D. Idaho

16

May 30, 2006) (order dismissing complaint for failing to state a claim pursuant

17

to 28 U.S.C. §§ 1915(e)(2)(B)(2) [Doc. No. 6]) (strike three);

18

4. Ullrich v. Canyon Cnty., Civil Case No. 1:06-cv-00320-EJL (D. Idaho Oct. 16,

19

2006) (initial review order dismissing case as legally frivolous pursuant to 28

20

U.S.C. § 1915(e)(2)(B) [Doc. No. 10]) (strike four);

21

5. Ullrich v. Prior, Civil Case No. 1:06-cv-00500-EJL (D. Idaho Jan. 31, 2007)

22

(initial review order dismissing complaint for failure to state claims upon which

23

relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) [Doc. No. 13]) (strike

24
25
1

26
27
28

To the extent Petitioner seeks to challenge the constitutionality of 28 U.S.C. § 1915(g)
because it has precluded his ability to proceed IFP in other cases, his access-to-courts claim
is foreclosed by the Ninth Circuit’s decision in Rodriguez v. Cook, 169 F.3d 1176, 1179–
81 (9th Cir. 1999) ( “§ 1915(g) does not infringe upon on inmate’s meaningful access to
the courts”).
3
16-CV-1130-AJB-DHB

1

five);

2

6. Ullrich v. Idaho, Civil Case No. 1:07-cv-00440-BLW (D. Idaho April 28, 2008)

3

(initial review order dismissing complaint for failure to state cognizable claims

4

pursuant to 28 U.S.C. § 1915(e)(2)(B) [Doc. No. 8]) (strike six); and

5

7. Ullrich v. Idaho, Civil Case No. 1:08-cv-00076-BLW (D. Idaho June 16, 2008)

6

(initial review order dismissing complaint as legally frivolous pursuant to 28

7

U.S.C. § 1915(e)(2)(B) [Doc. No. 7]) (noting that Petitioner had “filed at least

8

twenty-six (26) civil lawsuits in the District of Idaho involving the same

9

allegations arising out of his criminal conviction and alleged civil rights

10

violations,” his “failure to prevail in any of them,” and previous unheeded

11

warnings “to stop filing complaints involving previously litigated claims,”

12

resulting in the issuance of a pre-filing review order in the District of Idaho)

13

(strike seven).

14

Because Petitioner has, while incarcerated, accumulated more than three strikes

15

pursuant to § 1915(g), and he fails to make a plausible allegation that he faced imminent

16

danger of serious physical injury at the time he filed his complaint, he is not entitled to the

17

privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169

18

F.3d at 1180 (Ҥ 1915(g) does not prevent all prisoners from accessing the courts; it only

19

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

20

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

21

1984) (“court permission to proceed [IFP] is itself a matter of privilege and not right”).2
CONCLUSION

22
23

For the reasons set forth above, the Court DENIES Petitioner’s motion to proceed

24

IFP, (Doc. No. 2), as barred by 28 U.S.C. § 1915(g); (2) DISMISSES this action

25
26
27
28

2

The Court notes that Judge Benitez similarly dismissed a complaint filed by Petitioner for
violation of § 1915(g). See Ullrich v. United States District Court Boise, Idaho, Civil Case
No. 3:16-cv-01135-BEN-JLB (S.D. Cal. July 28, 2016) (Doc. No. 5).
4
16-CV-1130-AJB-DHB

1

WITHOUT PREJUDICE for failure to pay the full statutory and administrative $400

2

civil filing fee as required by 28 U.S.C. § 1914(a); and (3) CERTIFIES that an IFP appeal

3

from this order would be frivolous and therefore would not be in good faith pursuant to 28

4

U.S.C. § 1915(a)(3). See Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (indigent

5

appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

6

Failure to pay the filing fee by August 29, 2016, will result in this case’s closure.

7
8

IT IS SO ORDERED.

9

Dated: August 1, 2016

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
16-CV-1130-AJB-DHB