Tran v. Barona Casino et al

Filing 3

ORDER: (1) Denying Motion to Proceed in Forma Pauperis; and (2) Dismissing Civil Action without Prejudice for Failure to Pay Filing Fee. Signed by Judge Roger T. Benitez on 7/10/2017.(All non-registered users served via U.S. Mail Service)(knb) (jao).

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 HOANG MINH TRAN, Booking #17104099, Plaintiff, 13 14 Case No.: 3: 17-cv-00685-BEN-BLM vs. 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECFNo. 2] 15 16 17 18 19 20 ORDER: BARONA CASINO, et al., Defendants. AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 21 22 HOANG MINH TRAN (Plaintiff), a pretrial detainee and/or convicted prisoner 23 serving his sentence in local custody at the San Diego County Sheriff Department's 24 George Bailey Detention Facility, and proceeding prose, has filed a civil rights 25 complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims Barona Casino, 26 several unidentified security guards, and California State Department of Justice officials 27 wrongfully arrested, imprisoned, and interrogated him against his will in December 2016, 28 for "passing bogus money," attempted burglary, and attempted robbery. (Id. at 3.) 3:17-cv-00685-BEN-BLM 1 Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); 2 instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 3 U.S.C. § 1915(a) (ECF No. 2). 4 I. 5 Motion to Proceed IFP "All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cnty. 6 Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, 7 "face ... additional hurdle[s]." Id. 8 9 Specifically, in addition to requiring prisoners to "pay the full amount of a filing fee," in "monthly installments" or "increments" as provided by 28 U.S.C. 10 § 1915(a)(3)(b), Bruce v. Samuels, _U.S._, 136 S. Ct. 627, 629 (2016); Williams v. 11 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 12 ("PLRA") amended section 1915 to preclude the privilege to proceed IFP: 13 ... 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. 14 15 16 17 18 28 U.S.C. § 1915(g). "This subdivision is commonly lmown as the 'three strikes' 19 provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 20 "Pursuant to§ 1915(g), a prisoner with three strikes or more cannot proceed IFP." 21 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereinafter 22 "Cervantes") (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful 23 suits may entirely be barred from IFP status under the three strikes rule[.]"). The 24 objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner 25 litigation in federal court." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 26 "[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both 27 before and after the statute's effective date." Id. at 1311. 28 /// 2 3:17-cv-00685-BEN-BLM 1 "Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 2 which were dismissed on the ground that they were frivolous, malicious, or failed to state 3 a claim," Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even ifthe 4 district court styles such dismissal as a denial of the prisoner's application to file the 5 action without prepayment of the full filing fee." O'Neal v. Price, 531 F.3d 1146, 1153 6 (9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 7 (noting that when court "review[s] a dismissal to determine whether it counts as a strike, 8 the style of the dismissal or the procedural posture is immaterial. Instead, the central 9 question is whether the dismissal 'rang the PLRA bells of frivolous, malicious, or failure 10 to state a claim."' (quoting Blakely v. Wards, 738 FJd 607, 615 (4th Cir. 2013))). 11 Once a prisoner has accumulated three strikes, he is simply prohibited by section 12 1915(g) from pursuing any other IFP civil action or appeal in federal court unless he 13 alleges he is facing "imminent danger of serious physical injury." See 28 U.S.C. 14 § 1915(g); Cervantes, 493 FJd at 1051-52 (noting§ 1915(g)'s exception for IFP 15 complaints which "make[] a plausible allegation that the prisoner faced 'imminent danger 16 of serious physical injury' at the time of filing."). 17 II. 18 Application to Plaintiff As an initial matter, the Court has carefully reviewed Plaintiffs Complaint and has 19 ascertained that it does not contain any "plausible allegations" to suggest he "faced 20 'imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at 21 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiffs Complaint seeks 22 money damages against mostly unidentified private security and law enforcement 23 personnel for "wrongfully" arresting and holding him "hostage" in a casino in December 24 2016. (ECF No. 1 at 3.) He also objects to the confiscation of$2,000 in chips, seeks the 25 restoration of his "Diamond Membership status," and claims someone towed his father's 26 Toyota Corolla "without valid reason." (Id.) 27 28 And while Defendants typically carry the burden to show that a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, "in some instances, the district court 3 3: l 7-cv-00685-BEN-BLM 1 docket may be sufficient to show that a prior dismissal satisfies at least one of the criteria 2 under§ 1915(g) and therefore counts as a strike." Id. at 1120. That is the case here. 3 A court may take judicial notice of its own records, see Molus v. Swan, No. 3 :05- 4 cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 5 States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986), and '"may take notice of 6 proceedings in other courts, both within and without the federal judicial system, if those 7 proceedings have a direct relation to matters at issue."' Bias v. Moynihan, 508 F.3d 1212, 8 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F .3d 801, 803 n.2 (9th Cir. 9 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 10 11 Inc., 971F.2d244, 248 (9th Cir. 1992). Plaintiff Hoang Minh Tran, currently identified as San Diego Sheriffs Department 12 Inmate Booking #17104099, and previously identified as CDCR Inmate #AA-5944, has 13 had four prior prisoner civil actions dismissed on the grounds that they were frivolous, 14 malicious, or failed to state a claim upon which relief may be granted. They are: 15 1) Tran v. Gore, et al., No. 3:10-cv-1323-BTM-WMc (S.D. Cal. Aug. 16 23, 2010) (Order Granting Motion to Proceed IFP and Dismissing Action 17 For Failing to State a Claim upon which relief may be granted pursuant to 28 18 U.S.C. § 1915(e)(2) & § 1915A(b)) (ECF No. 4) (strike one); 19 2) 20 2011) (Order Dismissing First Amended Complaint for Failing to State a 21 Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)) 22 (ECF No. 5) (strike two); 23 3) 24 2011) (Order Dismissing First Amended Complaint as Frivolous pursuant to 25 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)) (ECF No. 8) (strike three); and 26 4) 27 14, 2011) (Order Dismissing First Amended Complaint for Failing to State a 28 Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)) Tran v. Gore, eta!., No. 3:10-cv-1751-JAH-WVG (S.D. Cal. Feb. 14, Tran v. Gore, et al., No. 3:10-cv-2036-JAH-WVG (S.D. Cal. Feb. 15, Tran v. Gore, et al., No. 3:10-cv-1880-MMA-BLM (S.D. Cal. Feb. 4 3:17-cv-00685-BEN-BLM .. 1 (ECF No. 8) (strike four). 2 Accordingly, because Plaintiff has, while incarcerated, accumulated more than 3 three "strikes" pursuant to § l 9 l 5(g), and he fails to make a "plausible allegation" that he 4 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 5 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 6 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 7 § 1915(g) "does not prevent all prisoners from accessing the courts; it only precludes 8 prisoners with a history of abusing the legal system from continuing to abuse it while 9 enjoying IFP status"); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 10 ("[C]ourt permission to proceed IFP is itself a matter of privilege and not right."). 11 III. Conclusion and Order 12 For the reasons set forth above, the Court DENIES Plaintiffs Motion to Proceed 13 IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g); DISMISSES this action without 14 prejudice for failure to pay the full statutory and administrative $400 civil filing fee 15 required by 28 U.S.C. § 1914(a); CERTIFIES that an IFP appeal from this Order would 16 be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. 17 § 1915(a)(3); and DIRECTS the Clerk of Court to close the file. 18 IT IS SO ORDERED. 19 20 Dated: Jul~k, 2017 21 22 23 24 25 26 27 28 5 3: l 7-cv-00685-BEN-BLM

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