Rodriguez v. Gore

Filing 4

ORDER (1) Denying Motion To Proceed In Forma Pauperis As Barred By 28 USC 1915(g) (Dkt # 2 ), (2) Dismissing Civil Action Without Prejudice, And (3) Denying Motion For Preliminary Injunction (Dkt # 3 ): The Clerk shall close the file. Signed by Judge William Q. Hayes on 12/15/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PEDRO RODRIGUEZ,
Booking #14745493,

Case No.: 3:16-cv-02984-WQH-KSC
ORDER:

Plaintiff,

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v.

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(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF Doc. No. 2]

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SHERIFF WILLIAM GORE,
Defendants.

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

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(3) DENYING MOTION FOR
PRELIMINARY INJUNCTION

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Plaintiff, Pedro Rodriguez, currently detained at the San Diego Central Jail, has
filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF Doc. No.
1.) Plaintiff seeks injunctive relief against the San Diego County Sheriff, William Gore.
See Compl. at 7.

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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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In addition, Plaintiff has filed a one page document entitled “Motion for Order to Show

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Cause for Preliminary Injunction and Temporary Restraining Order.” (ECF Doc. No. 3).

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I.

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

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

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

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

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

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(“PLRA”) amended 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 IFP.”

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

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

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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 section

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

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

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

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

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at the time of filing.”).

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II.

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

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

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

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1055 (quoting 28 U.S.C. § 1915(g)).
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 that Plaintiff, while incarcerated, has brought

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

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

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U.S.C. § 1915(g).

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3:16-cv-02984-WQH-KSC

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They are:

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1)

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

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

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

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2)

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

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

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Dismissing Complaint for failing to state a claim and seeking monetary

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

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3)

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

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

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

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Accordingly, because Plaintiff has, while incarcerated, accumulated at least the

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three “strikes”1 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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III.

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Motion for Preliminary Injunction and Temporary Restraining Order
Plaintiff also has filed a motion for injunctive relief. However, this request is far

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from clear and it contains only the broad assertion that “Petitioner’s right to redress as

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guaranteed under the 1st Amendment and Due Process under the 14th Amendment is

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Plaintiff has, in fact, filed twelve separate civil rights actions in this Court alone since
November 2014.
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under attack by Defendant Sheriff William Gore and his impending action to destroy

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Petitioner’s exculpatory evidence.” (Pl.’s Mot. at 1.) It is not clear what specific relief

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Plaintiff is seeking by way of either a temporary restraining order or preliminary

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injunction. In addition, because he is barred from proceeding IFP in this action and the

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action must be dismissed as a result, the Court cannot grant Plaintiff any injunctive relief

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at this time.

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IV.

Conclusion and Order

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For the reasons set forth above, the Court hereby:

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(1)

DENIES Plaintiff’s Motion for Preliminary Injunction (ECF Doc. No. 3);

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(2)

DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2) as barred by

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28 U.S.C. § 1915(g);
(3)

DISMISSES this civil action sua sponte without prejudice for failing to

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

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: December 15, 2016

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3:16-cv-02984-WQH-KSC