Blackman v. Bracamonte et al

Filing 3

ORDER 1) Denying 2 Motion to Proceed in Forma Pauperis as Barred by 28 U.S.C. § 1915(g). And 2) Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). For the reasons set forth above, the Court: 1) denies Plaintiffs Motion to Proceed IFP (ECF 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 required by 28 U.S.C. § 1914(a); 3) certifies that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3).Signed by Judge Larry Alan Burns on 6/14/2017. (lrf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,
CDCR #V-22349,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-00059-LAB-JLB

vs.

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

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P. BRACAMONTE, C Yard Captain,
et al.,

AND

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)

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TONY BLACKMAN (Plaintiff), currently incarcerated at Richard J. Donovan

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Correctional Facility (RJD) in San Diego, California, and proceeding pro se, has filed a

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civil rights complaint pursuant to 42 U.S.C. § 1993 (ECF No. 1).

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While far from clear, Plaintiff’s Complaint alleges several RJD officials, including

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the Warden, have “refuse[d] to stop other prison employees from subjecting [him] to

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unjustified deprivation[s].” (Id. at 2.) Specifically, Plaintiff contends RJD inmate appeals

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officials have “wrongfully rejecte[ed]” his grievances, (id. at 5, 7), and have refused to
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“double-cell” him, a “star witness … not under scientific nuclear power electronic

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surveillance watch 24/7,” with white, black, or Mexican inmates “in his weight division,”

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based on their “extreme fear of losing there [sic] power.” (Id. at 6, 8, 10-13.) In other

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portions of his pleading, Plaintiff invokes “Ferguson,” the “September 11, 2001 terrorist

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attack,” the “Sandy Hook Elementary School shooting,” and a “Folsom prison riot,”

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claims he has been denied the right to “appeal” or “appear” in court to answer “criminal

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charges filed against [him] on 5-24-04 and 8-27-07 and 3-19-10 and 7-8-03,” and

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attributes all of this to the “former San Joaquin County Deputy District Attorney using

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scientific nuclear power radio ultra[-]low frequency radio waves radiation pressure to

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stop [him] from writing good [sic].” (Id. at 11.)

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Plaintiff has not prepaid the 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”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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I.

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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 “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); 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).
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“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); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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Once a prisoner has accumulated three strikes, he is simply prohibited by section

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1915(g) from pursuing any other IFP civil action or appeal in federal court unless he

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alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C.

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

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

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of serious physical injury’ at the time of filing.”).

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II.

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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 any “plausible allegations” to 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)). Instead, as noted above, Plaintiff’s Complaint seeks

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to sue RJD officials as a group for failing to prevent “unjustified deprivations” which

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involve delusional claims of “tower control officers[’] T.V. cameras,” “electronic

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surveillance,” “nuclear power,” and “ultra-low frequency radio waves” which “control

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people [sic] conscious mind and impulse[s].” (ECF No. 1 at 2-11.) See e.g., In re

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Gonzalez, 2008 WL 666465 at *2-3 (N.D. Cal. March 6, 2008) (finding prisoner with a

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“delusional tale” of having a “special genetic structure,” and being “irradiated … by

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radioactive smoke” by “government scientists,” did not plausibly allege “imminent

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danger of serious physical injury.”); Holz v. McFadden, 2010 WL 3069745 at *3 (C.D.

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Cal. May 21, 2010) (finding “imminent danger” exception to § 1915(g) inapplicable

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where prisoner implausibly claimed the FBI and BOP were “going to kill him.”); Sierra

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v. Woodford, 2010 WL 1657493 at *3 (E.D. Cal. April 23, 2010) (finding “long,

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narrative, rambling statements regarding a cycle of violence, and vague references to

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motives to harm” insufficient to show Plaintiff faced an “on going danger” as required by

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Cervantes).

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And while Defendants typically carry the burden to show that a prisoner is not

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entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

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docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

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under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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Thus, this Court takes judicial notice that Plaintiff, Tony Blackman, identified as

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CDCR Inmate #V-22349, has had at least six prior prisoner civil actions dismissed on the

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grounds that they were frivolous, malicious, or failed to state a claim upon which relief

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may be granted.

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They are:

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1)

Blackman v. Hartwell, et al., Civil Case No. 1:99-cv-05822-

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REC-HGB (E.D. Cal. Jan. 19, 2001) (Findings and Recommendations

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[“F&R”] re Dismissal of Action) (ECF No. 9 at 2) (“[T]he court recommends

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dismissal of the claims made in the original complaint with prejudice for

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failure to state a federal claim upon which the court could grant relief.”); (E.D.

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Cal. March 12, 2001) (Order Adopting F&R “in full” and dismissing action

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“for failure to state a claim upon which relief can be granted.”) (ECF No. 10

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at 2) (strike one);

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2)

Blackman v. Medina, Civil Case No. 3:05-cv-05390-SI (N.D.

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Cal. March 13, 2006) (Order of Dismissal without leave to amend pursuant to

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28 U.S.C. § 1915A) (ECF No. 5 at 5) (“[N]either the complaint nor the

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amended complaint state a claim upon which relief may be granted.”) (strike

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two);

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3)

Blackman v. Variz, Civil Case No. 3:06-cv-06398-SI (N.D. Cal.

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Dec. 18, 2006) (Order of Dismissal per 28 U.S.C. § 1915A) (ECF No. 5 at 5)

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(“[N]either the complaint nor the amended complaint state a claim upon which

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relief may be granted.”) (strike three);

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4)

Blackman v. Taxdahl, et al., Civil Case No. 1:04-cv-06389-AWI-

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LJO (E.D. Cal. Feb. 27, 2007) (F&R to Dismiss Action without leave to

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amend for “fail[ure] to state a claim for relief under section 1983.”) (ECF No.

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8 at 5); (E.D. Cal. May 18, 2007) (Order Adopting F&R “in full” and

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“Dismissing Entire Action.”) (ECF No. 9) (strike four);

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///
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5)

Blackman v. Mantel, et al., Civil Case No. 3:07-cv-02609-SI

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(N.D. Cal. Sept. 5, 2007) (Order of Dismissal per 28 U.S.C. § 1915A) (ECF

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No. 4 at 4) (“[T]his action is dismissed without leave to amend because the

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complaint fails to state a claim upon which relief may be granted.”) (strike

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five); and

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Blackman v. Evans, et al., Civil Case No. 1:06-cv-00081-GSA

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(E.D. Cal. Feb. 3, 2009) (Order Dismissing Action, with prejudice, “based on

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plaintiff’s failure to state any claims upon which relief may be granted under

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section 1983.”) (ECF No. 18 at 2) (strike six).

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

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

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faced imminent danger of serious physical injury at the time he filed his Complaint, he is

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not entitled to the privilege of proceeding IFP in this action. 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.

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Conclusion and Order
For the reasons set forth above, the Court:
1)

DENIES Plaintiff’s Motion to Proceed IFP (ECF 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 required by 28 U.S.C. § 1914(a);
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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///
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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); and

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4)

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IT IS SO ORDERED.

DIRECTS the Clerk of Court to close the file.

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Dated: June 14, 2017
HON. LARRY ALAN BURNS
United States District Judge

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