Woods v. Madden

Filing 4

ORDER: (1) Denying 2 Motion for Leave to Proceed in forma pauperis as Barred by 28 U.S.C. § 1915(g); (2) Dismissing Action Without Prejudice; (3) Denying as Moot 3 Motion to Appoint Counsel. The Clerk shall close the file. Signed by Judge John A. Houston on 3/21/2017. (All non-registered users served via U.S. Mail Service)(jao)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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EARNEST CASSELL WOODS, II,
Booking #14745493,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-00164-JAH-KSC

v.

(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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R. MADDEN, ET AL.,
Defendants.

(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
APPOINTMENT OF COUNSEL AS
MOOT

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Plaintiff, Earnest Cassell Woods, currently housed at San Quentin State Prison, has

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

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1.) Plaintiff alleges that his constitutional rights were violated at Centinela State Prison

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during an unspecified time period. See Compl. at 5.

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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 Motion for Appointment of Counsel (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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3:17-cv-00164-JAH-KSC

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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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3:17-cv-00164-JAH-KSC

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They are:

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1)

Woods v. Carey, et al., Civil Case No. 3:05-cv-01157-MJJ (N.D. Cal. May

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31, 2005) (Order Dismissing Complaint for failing to state a claim) (ECF

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Doc. No. 8) (strike one);

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2)

Woods v. Carey, et al., Civil Case No. 3:05-cv-00049-MCE-DAD (E.D. Cal.

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Jan. 26, 2006) (Order adopting Findings and Recommendations and

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dismissing action for failure to state a claim upon which relief may be

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granted) (ECF Doc. No. 14) (strike two);

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3)

Woods v. Marshall, et al., Civil Case No. 3:11-cv-08551-UA-OP (C.D. Cal.

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Jan. 19, 2012) (Order Denying Motion to Proceed IFP and dismissing action

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as frivolous (ECF Doc. No. 3) (strike three).

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

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three “strikes” 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.

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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(2)

DISMISSES this civil action sua sponte without prejudice for failing to

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

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3:17-cv-00164-JAH-KSC

DENIES Plaintiff’s Motion to Appoint Counsel (ECF Doc. No. 3) as moot.

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(3)

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: March 21, 2017
Hon. John A. Houston
United States District Judge

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